A man dealing with a brain injury can proceed with his discrimination complaint against BC Ferries after being denied priority access, B.C. Human Rights Tribunal has ruled.

In a May 30 decision, B.C. Human Rights Tribunal vice-chairperson Devyn Cousineau denied a BC Ferries application to have Roger Chin's complaint dismissed without hearing. 

Chin says he was discriminated against based on his disabilities when he was denied access to a ferry at Departure Bay terminal in Nanaimo, B.C. on Aug. 18, 2019. At the time, Chin was travelling weekly to Vancouver for medical appointments.

In addition to the brain injury, Chin is living with craniocervical instability, Cousineau states, which can lead to headaches, neck pain, and chronic fatigue syndrome. As a result, travelling can be difficult as he requires oxygen tanks, which only last for four hours.

BC Ferries has a Medical Assured Loading policy, allowing people to avoid wait times provided they have a letter from their doctor, according to the company's website.

A mid-morning sailing from Departure Bay terminal was full, stated Cousineau, and the terminal was busy, with a two-sailing wait. While Chin had a doctor's letter and a BC Ferries travel assistance program form, he did not have a medical assured loading letter from BC Ferries and was denied access.

Chin contends it was a hot day and he wasn't able to wait for the next ferry. In addition, he had a “medical crisis and needed to escape." He says "he had to go to cool down in a quiet environment and use an oxygen concentrator to bring down his elevated heart rate and stress," Cousineau's decision stated. Chin claims that later in the day, he was able to get priority access to a ferry at Duke Point terminal, despite a two-sailing wait.

Subsequently, the doctor requested the medical assured loading letter, on behalf of Chin, but was denied as his travel was not deemed for "critical care or emergency medical services," according to the decision. Chin said obtaining a letter is long and laborious and didn't assist in his need to head to Vancouver for "non-emergency appointments."

BC Ferries argued Chin didn't "set out the facts that could prove that he had a disability-related barrier" that met the criteria of medial assured loading. Chin didn't have a "reasonable prospect of proving his disabilities were a factor" in denying him medical assured loading and further, the company has since changed policy so the letter is no longer required.

While, BC Ferries seemed to rectify "the systematic concerns" Chen brought up, it doesn't address the "personal remedy" sought by the complainant, according to Cousineau. If the tribunal found that Chin had been discriminated against, it would rule that BC Ferries should pay restitution to "compensate" him for the embarrassment and loss of self-respect.

Chin was granted access at Duke Point later that day, noted Cousineau, and he did work with his doctor in an attempt to procure the letter. The purpose of the Human Rights Code is to provide safeguards so that people who are discriminated against have an avenue for restitution

"BC Ferries does not explain how it has addressed the discrimination that Mr. Chin alleges that he suffered; indeed, it denies that there was any discrimination – as it is entitled to do," stated Cousineau's decision. "It does not make submissions about why the complaint should be dismissed notwithstanding Mr. Chin’s claim for damages."

While BC Ferries has made policy changes, allowing Chin's complaint to proceed furthers the intent of the code and allows him to "seek personal remedy."

The ruling deals with whether or not the claim can proceed to a hearing, rather than the details of the claim itself. None of the statements made have been proven in court.