City of Burnaby discrimination complaint over latex allergy dismissed by Human Rights Tribunal

The BC Human Rights Tribunal has dismissed allegations that the City of Burnaby discriminated against an employee based on her latex allergy.

Tracy Klewchuk filed a complaint with the Human Rights Tribunal (HRT) against the city in 2018 over a dispute regarding latex balloons at the workplace.

The HRT heard the matter over 31 days and found, in a lengthy decision published online last week, that the city did not discriminate against Klewchuk, nor did it retaliate against her for raising human rights concerns.

Klewchuk, who represented herself at the HRT, is an auxiliary employee in various roles with the city’s parks department. That includes recreation attendant, contract skate instructor, program leader, assistant program leader, recreation leader, recreation clerk, and others.

Much of that work was at the Kensington and Copeland arenas, as well as the Cameron Recreation Complex.

Latex allergy and exposures

She was diagnosed with latex, garlic, and onion allergies in 2000. Shortly thereafter, she told the HRT, she told the city about her diagnoses and that she again told her supervisors about her latex allergy in 2008.

She claimed they ignored that information and required her to work regularly around latex balloons, while at the same time restricting work available to her. She raised a formal complaint in the mid-2010s, at which point she said her supervisor retaliated against her.

Klewchuk said she was given a poor performance review, and she was denied work, which she believed to be in response to her complaint.

Between 2014 and 2018, she said she was exposed to latex on 13 separate occasions and to garlic three times.

She further claimed to have been denied a shift in January 2016 as a result of latex allergies, which she also believed to have played a role in her unsuccessful bids for three jobs with the city.

And when she did get a new job, she claimed the city delayed activating the job code for two years due to her allergies.

The city, represented by Roper Greyell lawyers Jennifer Hogan and Gabrielle Scorer, said it accepted that she had allergies that required accommodation.

But it argued it had adequately accommodated her, with any impacts on her employment related to her allergies being justified as a “bona fide occupational requirement.”

“It submits that Ms. Klewchuk’s accommodation was unusually complex because of a number of complicating factors,” reads the ruling from HRT tribunal member Devyn Cousineau.

“Significantly, the city says, Ms. Klewchuk was reporting that her allergies were life-threatening, but it proved difficult to get clear and cogent information about the degree of risk, how a reaction could be triggered, and the appropriate response in the event of an exposure.”

“She argues that the city was motivated to only call witnesses which would support its case and that this was ‘a collaborative undertaking on the part of the city to cover-up it’s failures.’ … I do not accept that.”

Photo: Dustin Godfrey / Burnaby Beacon

Facts disputed

In her decision, Cousineau said the case was one that “turns on its facts”—particularly where the facts are disputed.

“In a number of very important areas, Ms. Klewchuk’s evidence was directly contradicted by witnesses for the city. This has made it necessary for me to make findings of credibility and decide which evidence to prefer,” Cousineau wrote.

Cousineau said she felt Klewchuk gave evidence she “believed to be truthful and was, in that sense, honest.” And she accepted that Klewchuk had “genuinely suffered” from a perception of being stuck in a “years-long ‘David and Goliath’ battle with the city.”

“This suffering was apparent in her emotional response to much of her testimony and supported to some extent by the evidence of Dr. [Chakravarty] Pole,” Cousineau wrote, referring to Klewchuk’s psychiatrist.

“However, notwithstanding the strength of her own convictions, I have found that much of Ms. Klewchuk’s evidence is not accurate or reliable.”

Cousineau said Klewchuk’s evidence came from a place of feeling malice from the city and “a number of specific people within it” for years, “in circumstances where all of the other evidence is to the contrary.”

“To begin, it was remarkable the extent to which Ms. Klewchuk’s version of events was contradicted by nearly every one of the city’s witnesses, on issues ranging from minor incidents or interactions to very significant conversations or events,” Cousineau said.

Specifically, she said Klewchuk remembered expressing things the witnesses insisted she didn’t or interpreted others’ behaviours “in a way that is inconsistent with their role or motives, or the probabilities of the case as a whole.”

‘I do not accept that’

Her evidence also “frequently” conflicted with written correspondence or documents from the time of incidents.

“When presented with a different version of events from city witnesses, Ms. Klewchuk’s consistent explanation was that all of the city’s witnesses were lying to protect their own jobs,” Cousineau wrote.

“She argues that the city was motivated to only call witnesses which would support its case and that this was ‘a collaborative undertaking on the part of the city to cover-up it’s failures.’ … I do not accept that.”

By contrast, Cousineau said the city’s witnesses were consistent with one another and with documentary evidence and “unshaken” in cross-examination. And the witnesses ranged from casual employment to long-running careers.

“I do not find it plausible that they were each independently so in fear of job-related consequences that they coordinated their evidence and chose to lie under oath in order to protect the city,” Cousineau said.

“While in theory that might be possible for one or two witnesses, I am not satisfied that it is a reasonable explanation for why 12 city witnesses gave evidence that is irreconcilable with Ms. Klewchuk’s version of events.”

Cousineau dismissed Klewchuk’s discrimination and retaliation complaints in their entirety.

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