Burnaby worker's garlic allergy discrimination case dismissed

City employee Tracy Klewchuk claimed she was discriminated against when her employer didn't accommodate her allergies

A Human Rights Tribunal member has declined to reconsider a complaint from a woman who claims her employer, the City of Burnaby, discriminated against her by not accommodating her allergies to latex balloons, onions and garlic

Tracy Klewchuk, who has worked for the city for more than 25 years, said her work at recreation centres exposed her to latex, onions and garlic between 2008 and 2018. She also accused the city of depriving her of work in retaliation for her complaints.

In April 2019, tribunal member Devyn Cousineau dismissed Klewchuk’s case, ruling she had “failed to particularize a number of her allegations.”

Klewchuk then officially asked Cousineau to reconsider her decision earlier this month.  

“I informed her that reconsideration was not an opportunity to re-argue the merits of the decision. Despite this, Ms. Klewchuk’s initial submission only included arguments about the merits of the decision,” Cousineau wrote in her decision to dismiss Klewchuk’s application for reconsideration.

Later, however, Klewchuk did make a new argument, according to Cousineau: That she had been denied the chance to argue her case in the original application because the City of Burnaby had failed to provide documents she needed to do so. 

But Cousineau found that Klewchuk had all the documents she needed to respond to a City of Burnaby application to have her case dismissed in April 2019 – and that the city worker had all but five of the documents she said she needed by January 2019.

Klewchuk, who represented herself to the tribunal, also said she also did not have enough time to adequately prepare and present her case. 

“I accept that this is not easy, and that during the relevant timeframe she was receiving a large volume of documents and working on a number of different issues simultaneously, particularly as the April hearing dates approached,” Cousineau wrote. “At the same time, Ms Klewchuk has proven herself very capable of representing herself in a sophisticated way.”

Klewchuk’s record of “representing herself in a sophisticated way” appears to have worked against her argument that she hadn’t had enough time during her original application.

“While any person would benefit from more time to piece together evidence and craft arguments, there is no evidence before me that Ms. Klewchuk was materially prejudiced in the submission process that gave rise to the decision,” Cousineau wrote.

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