An employee who has launched a human rights complaint against the City of Burnaby for not accommodating her allergy to latex balloons will get access to unredacted emails written about her by supervisors and senior city staff, the B.C. Human Rights Tribunal has ruled.
Tracy Klewchuk, a longtime city employee who has worked at various rec centres around the city, said she informed her employer of her latex allergy in 2007 or 2008.
Instead of switching to balloons made from a different material, however, Klewchuk said her supervisors scheduled her to work when there wouldn’t be balloons present, essentially cutting her hours.
She alleges her supervisors refused to use mylar (a latex alternative) balloons or remove balloons from the sites, and later gave her a bad performance review in retaliation for complaining about these issues.
The city denies discriminating against Klewchuk.
Redacted emails
Among the documents disclosed by the municipality in response to the complaint, were two emails written about Klewchuk.
The first was written on March 7, 2016 by a supervisor at the Cameron Rec Centre to the city’s manager of occupational health and safety and a senior human resources advisor.
“I have a situation with an auxiliary Recreation Leader 1 at Cameron Centre (referring to Ms. Klewchuk). I am hoping you can give me some guidance with how to proceed,” states the email.
The city said it redacted a large portion of the email because it relates to “the giving and receiving of labour relations advice concerning an employment matter that became the subject of a grievance … as well as a human rights complaint.”
Tribunal member Devyn Cousineau, however, said it was more accurate to describe the redacted parts of the email as the supervisor “seeking instruction about how she – or others acting in her role – should address future incidences where Ms. Klewchuk may be exposed to latex in the workplace.”
The second email was written on Sept. 15, 2017 by a senior human resources advisor to the director of human resources in response to Klewchuk’s union rep asking why Klewchuk wasn’t being given certain shifts.
A very short portion at the end of the email was redacted, the city said, because it contained “legal assessment and strategic considerations forming the basis of the labour relations advice” the human resources department would offer to the city.
Cousineau, however, said it was more accurate to describe that redacted bit as a “combination of statements of fact and opinion on the part of the HR advisor.”
Decision
She rejected the city’s argument that the redacted parts of the emails fell under labour relations privilege and were written with the expectation of confidentiality.
“I start with the observation that most people do not expect their emails will ever be disclosed outside the circle of intended recipients or subjected to scrutiny by decision makers,” Cousineau wrote. “This is, of course, particularly true in circumstances that are sensitive or contentious, or which turn out to be the subject of litigation. However, a general expectation, or even a hope, that emails will be confidential is not sufficient. A party claiming privilege must advance evidence or explanation for why the parties to an email had an expectation of confidentiality in the circumstances.”
Counsineau gave the city a week to disclose unredacted copies of the emails to Klewchuk.
