Cost of providing interpreter services to deaf medical resident did not create undue hardship for university and hospital, court confirmsNovember 10, 2016
Dismissing an application for judicial review, the B.C. Supreme Court upheld a British Columbia Human Rights Tribunal ruling that a university and a hospital discriminated against a deaf medical resident by failing to provide her with interpreter services. Rejecting allegations that the Tribunal had erred in finding a prima facie case of discrimination – that the resident met her obligation to cooperate in the accommodation process, and that the evidence presented did not sufficiently demonstrate that the cost of accommodation would amount to undue hardship – the Court held that no error by the Tribunal had been demonstrated.
When a human rights tribunal ruled that a university and a hospital discriminated against a deaf medical resident by refusing to provide her with interpreter services during her residency, the university and hospital sought judicial review, claiming that the tribunal's decision was unreasonable.
Deaf since birth, Jessica Dunkley graduated from medical school in May 2010 and subsequently enrolled in the residency training program at the University of British Columbia (UBC). She had been provided with interpreter services, note takers, tutors, and real time captioning services throughout her six years as an undergraduate at UBC, as well as interpreters for her four years of medical school at the University of Ottawa. On March 8, 2010, Dunkley was assigned to a dermatology residency at UBC, to begin on July 1, and she immediately contacted a senior diversity advisor specializing in accommodations for deafness at the UBC Access and Diversity (A&D) Office to ask for sign language interpreters. Over the following months, Dunkley communicated the details of her accommodation requirements to UBC and to the hospital to which she had been assigned, St. Pauls' Hospital, which was owned and operated by Providence Health Care (PHC), a non-profit society affiliated with the Vancouver Coastal Health Authority (VCHA). In particular, while Dunkley was adept at lip reading and could communicate with individual patients without an interpreter, she advised that she required an interpreter in any situation where communication was not one on one.
On June 7, 2010, UBC advised the Hospital that UBC's Post Graduate Medical Education (PGME) Office would be responsible for coordinating Dunkley's accommodation rather than the A&D Office, as Dunkley was not a "student" as defined in the province's University Act. On June 21, 2010, UBC informed Dunkley that it had not been able to resolve the "outstanding issues" to accommodate her for her July 1, 2010 starting date, and thus the commencement of her clinical duties would be postponed. Dunkley was instead assigned to rotations that did not require interpreter services in July and August. This included a research rotation and one in Family Medicine, where most interactions with patients were one on one. In a July 20, 2010 meeting with the PGME Office, the Hospital, the VCHA, and others, Dunkley was told that further medical information was needed, including an assessment by an Ear, Nose and Throat (ENT) specialist; that options were being explored, including changing her training program, for example by curtailing the Emergency Room rotation, and that the PGME Office would provide remuneration for an interpreter for the academic half days during her second rotation on a "without prejudice" basis.
On July 23, 2010, Dunkley filed a complaint with the British Columbia Human Rights Tribunal alleging that UBC and the Hospital were not making good faith efforts to accommodate her disability.
Throughout August and September 2010, Dunkley continued to communicate with UBC and the Hospital, and met twice with the ENT specialist, who provided his opinion that Dunkley would not be able to complete her residency training without "liberal access to a sign language interpreter." In mid-September, Disability Management Services at VCHA estimated, based on the ENT's report, that the interpreter costs would be in the range of 2.5 to 3 million dollars, and advised the PGME Office of this estimate shortly thereafter. In an October 12, 2010 meeting, after Dunkley completed a further one-week outpatient rotation at a rheumatology clinic without interpreters, the Hospital advised Dunkley that it had determined that all future rotations would require interpreter services and placed her on paid leave until the matter of her accommodation was resolved.
In a January 20, 2011 meeting, Dunkley was advised that neither UBC nor the Hospital could accommodate her needs because the cost of accommodation constituted undue hardship. She was placed on unpaid leave as of January 20, 2011 and remained on leave at the time of the hearing.
On April 8, 2011, Dunkley filed an amended human rights complaint alleging that UBC discriminated against her on the basis of disability, contrary to s.8(1) of the British Columbia Human Rights Code, by denying her a service, namely residency training, customarily available to the public, on the basis of her disability. She also alleged that the Hospital discriminated against her on the basis of disability regarding employment, contrary to s.13 of the Code.
In a June 30, 2015 decision (see 2015 BCHRT 100, reviewed in Lancaster's Human Rights and Workplace Privacy, February 9, 2016, eAlert No. 274), Tribunal Member Marlene Tyshynski allowed the complaint, ruling that UBC and the Hospital had discriminated against Dunkley on the basis of disability by terminating her residency program. Tyshynski determined that Dunkley had established a prima facie case of discrimination, as her deafness was a factor in the adverse treatment she had suffered, and that UBC and the Hospital failed to establish that they had a bona fide and reasonable justification for their discriminatory actions, as their evidence did not sufficiently demonstrate that the cost of accommodation would amount to undue hardship. In Tyshynski's view, the cost estimates put forward were likely severely inflated as they were unreasonably based on the "worst case scenario."
In this regard, some calculations included hours of interpreter services at times when Dunkley was merely on call and did not require an interpreter; predicted an average work week at the high end of 100 hours with two interpreters being required at all times; and incorrectly included scenarios where communication was one on one, and no interpreter would be required. The respondents also failed to consider other options for service delivery, including having an interpreter on staff as opposed to relying on contract interpreters with very high hourly rates. Tyshynski also found that UBC had failed to adequately explore all funding options, including the possibility of cost sharing among UBC, the VCHA, and the provincial government, observing that no evidence was provided indicating that the Ministry had refused UBC's request for funding. Finally, Tyshynski held that UBC had unreasonably determined that Dunkley could not access funding through the A&D office, noting that residents were considered students for some purposes. As a result, Dunkley was awarded lost wages, expenses, and $35,000 in compensation for injury to dignity.
UBC and the Hospital each brought an application for judicial review of the Tribunal's decision.
Justice William Ehrcke of the Supreme Court of British Columbia dismissed both applications for judicial review, finding no error in the Tribunal's decision.
Examining each of the alleged errors in turn, Ehrcke first considered the allegation that the Tribunal erred in admitting and giving weight to the evidence of Dr. Russell, who was alleged to be biased in favour of Dunkley, as reflected in e-mail statements to Dunkley that she would be happy to provide information to assist in calculating the costs of interpretation, and in her expressions of sympathy to Dunkley to the effect that "I just am SO SO sorry that you are in this position – you are so incredibly talented…" Ehrcke noted that s.27.2 of the Code permits the Tribunal to "receive and accept … evidence and information that the member or panel considers necessary and appropriate," and that "[t]he decision whether to admit evidence and the decision regarding the weight to accord it are … discretionary, and the standard of review is patent unreasonableness." Reviewing the Tribunal's reasons, Ehrcke was satisfied that there was no error in its decision to admit the evidence; that the Tribunal was alive to the allegation of appearance of bias, that it had properly applied the law relating to expert evidence, and that it had given due consideration to, as well as cogent reasons for, rejecting each of the arguments against admissibility advanced by UBC and the Hospital. He stated:
The Tribunal Member determined that Dr. Russell's evidence satisfied the four Mohan criteria, that is, the evidence was relevant to the issues before the Tribunal, it was necessary to assist the Tribunal in areas outside of its experience and knowledge, Dr. Russell had the required expert qualifications by reason of her specialized training and experience, and the evidence was not otherwise inadmissible.
I am satisfied that the decision to admit Dr. Russell's evidence was not patently unreasonable. The Tribunal Member did not exercise his discretion arbitrarily, in bad faith, or for an improper purpose. His decision was not based entirely or predominantly on irrelevant factors, nor did it fail to take statutory requirements into account.
Ehrcke similarly found no error in the weight accorded to Dr. Russell's evidence. The Tribunal had considered UBC and the Hospital's allegations of bias and had found that, while Dr. Russell was sympathetic to Dunkley's situation, this did not diminish her professionalism in authoring her expert opinion.
Turning to the allegation that the Tribunal erred in finding a prima facie case of discrimination by UBC and the Hospital, Ehrcke noted that the Tribunal had correctly applied the test for discrimination and had found that Dunkley had a characteristic protected from discrimination, that she experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact. Ehrcke rejected the Hospital's argument that it did not cause Dunkley to lose her employment, as it was UBC that decided to place her on paid and then unpaid leave, and to terminate her place in UBC's residency program, noting that the Tribunal had considered this argument and found that the Hospital was "sufficiently involved in the suspension and effective dismissal of Dr. Dunkley from employment to amount to adverse treatment of Dr. Dunkley by it in relation to her employment." In Ehrcke's view, this finding was reasonable and was supported by the evidence before the Tribunal.
Ehrcke also rejected the argument that the Tribunal engaged in a "legally flawed analysis" in concluding that Dunkley's hearing loss was a factor in her adverse treatment, finding that the Tribunal had not, as UBC and the Hospital alleged, relied on the failure to accommodate as a factor to prove prima facie discrimination. He reasoned:
While I agree with the petitioners that it would be an error in law to conflate the issue of prima facie discrimination with that of accommodation, I do not agree that the Tribunal committed that error in this case. Reading the impugned paragraphs of the Decision in context, it is clear that the Tribunal did not base its finding of prima facie discrimination on a failure to accommodate, but rather on the finding that there was a nexus between Dr. Dunkley's disability (her deafness) and her adverse treatment (loss of residency and termination of employment).
Nor did the Tribunal err in finding the nexus required for prima facie discrimination, the Court determined, as Dunkley's deafness was clearly a factor in the adverse impact she suffered. In concluding that Dunkley had met the requirement to show a connection or nexus between her disability and the adverse impact:
[P]art of [the] test [to establish a prima facie case of discrimination] remains whether the complainant can show that there was a connection or nexus between the protected characteristic and the adverse impact. The connection need not be a causal connection. It is sufficient if the complainant can show that the protected characteristic was a factor in the adverse impact….
In my view, there was a connection or nexus between Dr. Dunkley's deafness and her adverse treatment. If she had not been deaf, she would not have lost her employment and her residency. Her deafness was clearly a factor in the adverse impact that she suffered…. I find the Tribunal was correct in finding that Dr. Dunkley had satisfied the onus that was on her to show prima facie discrimination by both UBC and PHC.
With respect to Dunkley's cooperation in the accommodation process, Ehrcke found no error in the Tribunal's finding that Dunkley fulfilled her duty to assist in securing appropriate accommodation. Although UBC and the Hospital alleged that Dunkley had failed to provide certain information regarding her interpretation needs, the Tribunal concluded that Dunkley had fulfilled her duty in the accommodation process, including providing significant information at numerous points during the process, seeking out interpreters and keeping UBC and the Hospital informed, agreeing to some rearrangement of her program, and suggesting alternative funding sources UBC and the Hospital could investigate. Moreover, Ehrcke did not consider Dunkley's disagreement with the idea of removing altogether the rotations in general surgery, obstetrics, and psychiatry from the first two years of her residence program to be evidence of a lack of cooperation, noting that Dunkley "felt she should have access to different rotations just like other residents." Thus, Ehrcke concluded that the Tribunal's findings on this issue were not unreasonable and were supported by the evidence.
Regarding the allegation that the Tribunal erred in finding that UBC and the Hospital failed to establish that Dunkley could not be accommodated without incurring undue hardship, UBC and the Hospital alleged that the Tribunal erroneously imposed an independent procedural duty to accommodate since it had taken into account their failure to undertake a thorough accommodation investigation. Ehrcke disagreed, stating:
In the impugned paragraphs of the Decision, the Tribunal was not, as UBC and PHC allege, making a finding that because UBC and PHC had failed to undertake a sufficient investigation into costs, they therefore had breached their duty to accommodate to the point of undue hardship. Rather, the Tribunal was saying that UBC and PHC had failed to satisfy the onus upon them of demonstrating that the cost of accommodation would amount to undue hardship. Applying the standard of correctness, I find that the Tribunal did not err as alleged. I agree with the Tribunal that the failure of UBC and PHC to take reasonable steps to discover accurately the true cost of providing the required accommodation to Dr. Dunkley shows that neither UBC nor PHC has proven on a balance of probabilities that the cost of accommodation would amount to undue hardship.
Ehrcke also rejected the Hospital's contention that the Tribunal erred in concluding that the Hospital could not establish undue hardship without exploring external sources of funding, noting that the Hospital did not explain why it was unable to explore the possibility of cost-sharing or obtaining additional resources from the VCHA, the Ministry of Health, or UBC. In his view, "the Tribunal's conclusion that [the Hospital] could not rely simply upon its own budgetary restrictions in light of its failure to take reasonable and practical steps to explore other sources of funding was reasonable and correct."
Finally, noting that UBC and the Hospital had alleged a number of factual errors in the Tribunal's decision, Ehrcke did not find any of these factual findings to be unreasonable. Thus in respect of cost estimates, he held that it was "entirely reasonable for the Tribunal to give little weight to the [respondents'] cost estimates in light of the fact that, for the reasons stated, they were unreliable." In this regard, Ehrcke pointed out that none of the respondents' employees tasked with estimating the costs "had any experience in calculating the cost of providing ASL interpreters," and only one of them made an effort, "although minimal," to obtain information from a person who had actual knowledge. Aside from their lack of qualification to undertake the task, Ehrcke noted that "the authors of the estimates themselves considered them only to be rough estimates," and thus "it was appropriate for the Tribunal to conclude that it should not accord them more weight than their authors did." Further, the Tribunal's finding that UBC and the Hospital failed to take obvious first steps to educate themselves about accommodating deaf medical professionals was not unreasonable, as the Tribunal had observed that "UBC and [the Hospital] had obvious and appropriate resources available to them that could have provided relevant, timely information about the cost of engaging interpreters for Dr. Dunkley's residency." In this respect, in determining the cost of accommodating Dunkley, the Tribunal found that neither UBC nor the Hospital had considered other reasonable models of service, such as hiring an interpreter on staff rather than using hourly paid contract interpreters.
In the result, Ehrcke concluded that UBC and the Hospital had not demonstrated any error by the Tribunal, and dismissed the applications for judicial review.
In the seminal case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), (Meiorin), the Supreme Court of Canada established a three-step test for determining whether a prima facie discriminatory standard is a bona fide reasonable justification or a bona fide occupational requirement: (1) the standard was adopted for a purpose rationally connected to the performance of the job; (2) the standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) the standard is reasonably necessary to accomplish its purpose or goals, in the sense that the employer cannot accommodate the employee without incurring undue hardship. In the present case, the Court found that UBC and the Hospital failed to meet the third part of this test, as they failed to establish that the cost of accommodation would amount to undue hardship.
As the present case demonstrates, while cost is a factor to be taken into consideration with respect to undue hardship, an employer cannot simply assert that a requested accommodation is too costly.
As the decision in this case confirms, the employer or service provider bears the onus of proving cost using concrete, credible evidence, and the reasonableness of imposing the cost of accommodation on the employer or service provider will be evaluated in relation to all available financial resources, including external funding and cost-sharing options. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, reviewed in Lancaster's Human Rights and Workplace Privacy, November 7, 2008, eAlert No. 110, the Ontario Divisional Court noted that undue hardship may include "excessive cost or safety concerns," but that those concerns must be serious and the employer must prove that they are not merely speculative.
In addressing the issue of undue hardship based on financial cost, the Tribunal in this case was guided by several decisions of the Supreme Court of Canada. In Grismer, the government's policy of categorically denying people with a certain medical condition driver's licences was held to be discriminatory. Chief Justice Beverley McLachlin rejected the government's submission that accommodation through individual safety testing would result in undue hardship because of the excessive costs involved. Noting that the government had provided no precise cost figures, McLachlin suggested that an employer or service provider should obtain concrete evidence on the cost of accommodation, stating that "it is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. … [I]mpressionistic evidence of increased expense will generally not suffice."
In a subsequent decision, Council of Canadians with Disabilities v. VIA Rail Canada Inc, 2007 SCC 15 (CanLII), the Supreme Court found that the Canadian Transportation Agency had properly ruled that the cost to VIA Rail of refurbishing old rail cars in order to make them wheelchair-accessible did not create undue hardship. Justice Rosalie Abella held that costs are to be assessed not absolutely but relatively, using such factors as: (a) the size of an enterprise and the economic conditions confronting it; (b) an enterprise's capacity to shift and recover costs; (c) the impact and availability of external funding; and (d) the likelihood that bearing the net cost would threaten the survival of the enterprise or alter its essential character. Abella found that the proposed accommodation, though estimated to cost in the tens of millions of dollars, "proportionally [represented] a relatively insignificant sum whether viewed in the context of VIA's entire capital expenditure budget of $401.9 million or the approximately $100 million VIA expected to spend renovating the Renaissance cars."
Finally, in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), the claimants challenged the failure by hospitals and the B.C. Medical Services Commission to provide sign language interpreters for deaf persons seeking medical services as contrary to the equality rights guarantee in s.15 of the Canadian Charter of Rights and Freedoms. Writing for a unanimous nine-judge court, Justice Gérard LaForest held that the Charter applied to the hospital's application of a government policy providing B.C. residents with medically-required services free of charge and ruled that the Commission's failure to fund sign language interpretation for deaf persons violated s.15(1), where this interpretation was necessary for effective communication in delivering medical services. The Court ruled that, once the government provides a benefit it must do so equally. Moreover, the government had failed to demonstrate that it had a reasonable basis for denying medical interpretation services in light of their cost, since the cost of the proposed program throughout the province was estimated to be $150,000 per year, or 0.0025 percent of the provincial health care budget at the time. Emphasizing the need to foster a society "in which there are no impediments to full and free participation," and that it is "a cornerstone of human rights jurisprudence … that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation," the Court rejected the respondents' claim that the accommodation sought was too costly for the health care or other social systems to bear, stating: "The respondents have presented no evidence that this type of accommodation, if extended to other government services, will unduly strain the fiscal resources of the state. To deny the appellants' claim on such conjectural grounds, in my view, would denude s. 15(1) of its egalitarian promise and render the disabled's goal of a barrier-free society distressingly remote."
For other cases in which an employer failed to establish undue hardship, see Canadian Union of Public Employees, Local 4400 v. Toronto District School Board, 2016 CanLII 26730 (ON LA), reviewed in Lancaster's Education Employment Law, October 4, 2016, eAlert No. 95, in which Arbitrator Tanja Wacyk ruled that a school board had not established that accommodating a special needs assistant would amount to undue hardship, as it had not conducted a fact-based individual assessment of her accommodation requirements in its "woefully deficient" attempt to accommodate her; Horvath v. Rocky View School Division No. 41, 2015 AHRC 5, reviewed in Lancaster's Education Employment Law, February 25, 2016, eAlert No. 89, in which Alberta Human Rights Tribunal adjudicator Joanne Archibald ruled that a school division failed to establish that accommodating an injured caretaker would amount to undue hardship, as it had made only a cursory attempt to find suitable accommodation; and Tervit v. Canadian College of English Language, 2014 BCHRT 53, reviewed in Lancaster's Disability & Accommodation, February 24, 2015, eAlert No. 215, in which British Columbia Human Rights Tribunal Member Diana Juricevic criticized a college president's "knee-jerk reaction" in immediately denying a college teacher's request for accommodation based solely on his personal belief that the teacher was not entitled to "costly" accommodation, emphasizing that "[a]necdotal or impressionistic evidence regarding costs is not sufficient to satisfy undue hardship."