A human rights complaint launched by a former City of Nanaimo senior manager can proceed to a public hearing, a provincial tribunal has ruled.
The B.C. Human Rights Tribunal agreed to hear a complaint filed by Brad McRae, former chief operations officer, against the City of Nanaimo, according to a written decision released July 18.
McRae claims the City of Nanaimo violated his rights and discriminated against him when he was fired without cause following a termination hearing he couldn’t attend due to medical reasons.
The former senior manager was on medical leave when then-chief administrative officer, Tracy Samra, publicly announced he was no longer employed with the city.
“The tribunal confirmed the case is strong enough to go to a hearing and that my termination as well as the way the termination process and hearing was handled could be violations of the human rights code,” McRae said in a prepared statement to the News Bulletin.
Jake Rudolph, the city’s chief administrative officer, said he couldn’t comment on the matter but that city is aware of the ruling.
“We’ve received [the ruling] and we are in discussion with our legal counsel on the legal interpretation of that and our options,” he said.
In his complaint, McRae argued that his medical condition was a factor in the city’s decision to fire him and that the city failed to accommodate him when it held a termination hearing without him. The former COO also argued that the city deprived him of his statutory right to a termination hearing under the B.C. Community Charter.
The tribunal ultimately determined that McRae’s complaint could proceed to a public hearing, according to a written decision made by BCHRT member Grace Chen. However, the tribunal dismissed McRae’s claim that the city deprived him of his statutory right to a hearing under the community charter, explaining that a human rights tribunal is not the “appropriate forum” for that issue.
The BCHRT’s decision was in response to an application by the city to have McRae’s complaint thrown out entirely.
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According to tribunal documents, McRae went on medical leave in November 2017 after experiencing a breakdown due to stress that followed after testifying as a witness in an OIPC hearing and participating in an RCMP investigation into expenses made by Samra and Victor Mema, who was the city’s chief financial officer at the time.
Tribunal documents also state that when McRae was hired by the city in 2016, they were aware that he had pre‐existing PTSD and anxiety.
In late November 2017, according to the documents, McRae received a letter from Samra explaining that she was recommending his termination and had scheduled a hearing in December. However, the hearing was postponed to Jan. 10, 2018, because McRae couldn’t attend due to medical reasons.
The day before he was fired, the city received a doctor’s note explaining that he was medically unfit to attend a termination until after Jan. 17, according to the tribunal documents. Despite a request to postpone, the termination hearing took place and councillors voted to terminate McRae.
In her decision, Chen wrote that based on the evidence, the city’s position was that “it was important” for McRae to appear at the termination hearing in person.
Chen also explained that while the city cited that its lawyer presented alternative options – such as attending the hearing by video conference – as a part of its argument to have the complaint dismissed, she didn’t think that was a “viable option” because the doctor’s note didn’t specify that McRae was seeking alternative accommodation.
It’s unknown when a public hearing will take place as one has not been scheduled yet according to the tribunal’s website. McRae has hired lawyer Fred Wynne, from the Vancouver-based law firm HHBG Lawyers while the city has retained Vancouver lawyer Rodney Sieg.
McRae, who is now chief administrative officer with the Village of Gold River, has also launched a civil lawsuit against the City of Nanaimo, alleging he was fired because he refused to co-operate in covering up alleged misuse of corporate credit cards. The city has denied those allegations.
BCHRT's Decision: McRae v City of Nanaimo 2019 by Nanaimo News Bulletin on Scribd
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