The Worker v. The Store and others, 2024 BCHRT 187
Date Issued: June 19, 2024
File: CS-010147
Indexed as: The Worker v. The Store and others, 2024 BCHRT 187
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
The Worker
COMPLAINANT
AND:
The Store, The Parent Company and the Supervisor
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
I INTRODUCTION
[1] On July 17, 2023, the Worker filed a complaint alleging the Store, Parent Company, and Supervisor [together the Respondents ] discriminated in employment based on sex, contrary to s. 13 of the Human Rights Code [Code].
[2] The issue before me is whether to accept the complaint for filing against the Respondents given it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code . I make no findings regarding the merits of this complaint.
[3] On December 14, 2023, The Tribunal sent a notice of late filed complaint proceedings to the parties, including counsel for the Store and Parent Company [together the Corporate Respondents], and separate counsel for the Supervisor. The notice included a schedule for submissions on the late filing issue. To date, both Respondents’ counsel have not provided the Tribunal with any submissions.
[4] For the reasons that follow, I find that the complaint against the Supervisor is a continuing contravention of the Code, and it is in the public interest to accept the late filed complaint allegations for filing with respect to the Corporate Respondents.
II ORDER LIMITING PUBLICATION
[5] This complaint involves allegations of sexual harassment and assault of a minor. I have decided to order the limiting of the publication of names in this decision to protect the privacy interests of the minor complainant.
[6] I recognize there is a strong public interest in the Tribunal maintaining open and public processes to promote the awareness of the Code, education about its application, and access to its processes. However, there are exceptions to an open process where strong grounds for limited publication of personal information exist: A v. University and Dr. B and C and D and E, 2014 BCHRT 235, at para. 5. In this case, I am persuaded that strong grounds exist to limit public knowledge of the individuals involved. The Tribunal anonymizes minor children as a matter of course according to Rule5 of its Rules of Practice and Procedure. In protecting the privacy of the Worker, it is necessary, in my view, to also limit the publication of the names of the Store, Parent Company, Supervisor accused of the sexual harassment, and others working at the Store and Parent Company.
[7] In making this decision, I am satisfied that publishing this decision without any individual names allows the public to access the Tribunal’s proceedings while preserving the individuals’ privacy. In this way, the public can scrutinize the Tribunal’s preliminary decisions in this matter without the risk of harm to any individuals that could be named.
III BACKGROUND
[8] In July 2021, the Worker started her cashier position at the Store. She was 15 years old at that time.
[9] In July and August 2021, on numerous occasions while working on shift together, the Worker alleges that the Supervisor hugged her without permission and put his hand on her waist. These incidents allegedly occurred in front of customers. The Worker alleges she witnessed the Supervisor behaving in the same manner with other young female employees at the Store.
[10] In August 2021, the Worker alleges that she reported the Supervisor’s behavior to her supervisor, Ms. J, who told her she would speak to the Supervisor. The following day the Supervisor apologized to two other young female employees he had previously assaulted, but not to the Worker.
[11] In September 2021, the Worker alleges the Supervisor’s behaviour escalated as he began to grab the back of her neck and shake her roughly. She alleges the Supervisor also began to slap her buttocks with an open hand whenever he walked by her. The Worker further alleges the Supervisor randomly and without warning forced hugs on her from behind, often surprising her.
[12] In October 2021, the Worker alleges that she reported the Supervisor’s misconduct for a second time to Ms. J. During her conversation with Ms. J, the Worker alleges Ms. J informed her that the Supervisor had been fired from a previous job for sexual harassment and assault. The Worker reports that the Supervisor’s behaviour did not change after this report as he continued to harass and assault her and other young female employees in the Store.
[13] Some time in November or December 2021, the Worker alleges the Supervisor hugged her from behind after noticing she was visibly emotional while talking to another co-worker. The Worker alleges this made he more upset to the point where she was visibly crying and shaking. She alleges the Supervisor would not release her from the hug despite her struggling and proceeded to kiss her on the lips and cheek unexpectedly.
[14] Some time in January or February 2022, the Worker alleges the Supervisor approached her from behind while she was helping a customer and proceeded to grab her crotch while stating “hey how ya doing”.
[15] In March 2022, the Worker resigned from the Store for reasons related to the Supervisor’s actions and the Store and Parent Company’s inactions. She alleges the Store and Parent company failed to investigate or take any action in response to her, and other young female employees’, reports of sexual harassment.
[16] On August 25, 2022, while on conditions of agreeing not to contact the Worker, the Supervisor attended a restaurant where she was working. She alleges the Supervisor knew she worked at the restaurant and when he saw her, he smiled and remained at the restaurant despite his undertaking.
IV ANALYSIS AND DECISION
[17] Section 22 of the Codeprovides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[18] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit and Continuing Contravention
[19] The Complaint was filed on July 17, 2023. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after July 17, 2022.
[20] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City),2015 BCCA 57 at para. 23; School District at para. 50.
[21] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[22] There are no timely allegations of discrimination made against the Corporate Respondents capable of tethering this aspect of the Complaint as timely under s. 22(2) of the Code. The Worker’s allegations regarding events at the Store involving actions by the Supervisor and inaction on the part of the Corporate Respondents occurred between July 2021 and March 2022. As such, the Worker’s complaint against the Corporate Respondents was late filed and will be analyzed below under the public interest: s. 22(3).
[23] However, the Worker’s complaint information contains a timely allegation of discrimination with respect to the Supervisor’s conduct. On August 25, 2022, despite a no contact undertaking, presumably related to sexual assault and harassment allegations against the Worker, the Supervisor attended a restaurant where she was on duty and remained there, smiling at her, despite the undertaking. I am satisfied that this event is an allegation of discrimination: Moore v. British Columbia (Education) , 2012 SCC 61 at para 33. The Worker has shown that, if proven, she can establish that as a young woman, she experienced an adverse impact with respect to her former employment when her former supervisor attended her other workplace despite undertaking not to contact her; and that her sex was a factor in the alleged adverse impact suffered because of this occurrence.
[24] After reviewing the allegations against the Supervisor from July 2021 to February 2022, I find they are of a similar character sufficient to form part of a continuing contravention of the Code. The Worker’s complaint information includes numerous allegations of discrimination related to the Supervisor sexually harassing and assaulting her from July 2021 to February 2022. There is no question these allegations are of a similar nature as they involved the Supervisor repeatedly engaging in unwanted physical contact with the Worker in the workplace. I further conclude that the timely allegation in August 2022 is similar to these allegations in that the Supervisor presented himself to the Worker and engaged her with a smile, despite having undertaken not to contact her for reasons likely related to his previous sexual misconduct. While this allegation does not involve physical contact between the Worker and the Supervisor, it was a continuation of a pattern of unwanted contact with the event linked to sexual misconduct because of an undertaking by the Supervisor not to contact the Worker whatsoever.
[25] The other question related to a finding of a continuing contravention is whether a succession of allegations exists. It is necessary to look at whether any gaps exist between the allegations of discrimination and, if gaps are found, whether they can be explained. There are no gaps in the Worker’s allegations with respect to the Supervisor for the period from July 2021 to February 2022. However, a gap of five months occurred between February and August 2022. In my view, this gap is explainable as the Worker left her employment with the Store as of March 2022 and no longer had frequent contact with the Supervisor associated with the workplace until he decided to attend her other workplace in August 2022, despite him agreeing to a no contact undertaking.
[26] Having found a continuing contravention of the Code brings the Worker’s complaint against the Supervisor in time under s. 22(2), I now proceed to an analysis of whether the Tribunal should exercise its discretion to accept the Worker’s allegation of discrimination against the Corporate Respondents outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[27] Whether it is in the public interest to accept late-filed allegations with respect to the Corporate Respondents is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code: Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [Mzite] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mziteat para. 55.
[28] I have first considered the length of delay in filing. As noted above, the latest out of time allegation with respect to the Corporate Respondents occurred in March 2022. The delay in this case is, therefore, approximately four months, which is significant, but not inordinate if other factors militate in favour of acceptance: Attew v. Ministry of Public Safety and Solicitor General (Corrections Branch) and another, 2021 BCHRT 170 at para. 19;Bell v. BCGEU Local 801 and others, 2012 BCHRT 108 at para. 43; Levett v. The Breakwater Café and Bistro and another, 2016 BCHRT 181 at para. 10; Dyck v. Fraser Heights Funeral Home and another, 2016 BCHRT 16 at para. 12.
[29] The Worker provided several reasons for her delay in filing. These include the fact that she was a minor who has dealt with very serious conduct by a supervisor in the workplace, which traumatized her to the extent that she has been receiving support from the Crime Victims Assistance Program [CVAP]. The Worker noted there is significant medical and sociological evidence that victims of sexual assault may delay reporting their assaults for fear of stigma or because of the mental health impacts of such assaults.
[30] Where the delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great difficulty coping with even the basic daily tasks of life: Naziel-Wilson at para. 21. I accept the Worker’s evidence that she was traumatized by the events in question. I further accept the severity of the mental disability associated with the sexual harassment and sexual assaults is significant, as indicated by CVAP’s acceptance of her claim for support benefits. Finally, I recognize that victims of sexual assault generally may delay reporting because of the mental health impacts of such assaults. While the Worker’s evidence about her making CVAP claim indicates she was able to report the incidents with the Supervisor to the police and later make a claim for victim’s benefits to CVAP itself, I accept her evidence that her mental state following the sexual harassment and assaults contributed to her delay in filing a complaint with the Tribunal. With this in mind, I conclude the worker’s traumatized state following the events in question precluded her sufficiently from filing her complaint to attract the public interest in the circumstances of this case.
[31] I have also considered whether the Worker’s young age should be recognized as a factor attracting the public interest in allowing this late filed complaint to proceed. While appreciating the Worker was sufficiently mature to take on paid work with the Respondents, I accept that being between 16 and 17 years old during the relevant period in question contributed to the Worker’s delay as she would likely need the assistance of an adult to understand her rights under the Code and file a complaint with the Tribunal. Further, the level of maturity needed in terms of being able to work for pay would be considerably less than that needed to prepare and file a sexual harassment and assault complaint with the Tribunal. Once again, I recognize the worker likely was able to report a crime related to the events in question and apply for CVAP benefits, however, I accept her submission that she was able to access the assistance of adults in filing this complaint once she was no longer involved in other legal proceedings.
[32] When the Worker’s traumatized state, young age and involvement in the criminal process and CVAP to the distraction of other legal processes are looked in combination, I am satisfied that these reasons attract the public interest in allowing her late filed complaint against the Corporate Respondents to proceed.
[33] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BHCRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mziteat paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mziteat para. 67.
[34] The Worker seeks justice for the Corporate Respondents’ failure to protect her from sexual harassment and assaults in the workplace as a vulnerable young female employee. Her case is particularly disturbing in that she alleges reporting the Supervisor’s serious sexual misconduct on multiple occasions without adequate response from the Corporate Respondents. The Worker alleges she was then permitted to resign for reasons related to the alleged discrimination without the Corporate Respondents conducting any significant workplace investigation into the matter. She appears to indicate her case is unique and novel as it involves a significant power imbalance between an adult and a minor in the workplace, and a pattern of the Respondents discriminating against multiple young vulnerable female staff members at the Store by failing to protect them from the Supervisor’s misconduct. The Worker argues it is in the public interest for the Tribunal to encourage complainants, especially minor complainants, to report sexual assault discrimination.
[35] In my view, this Worker’s complaint is unique and novel as it involves sexual harassment and assault allegations involving a minor in the workplace. While unfortunately, sexual harassment cases are not uncommon at the Tribunal, those involving a minor complainant in her mid teens in the workplace are rare: Fougere v. Rallis and Kalamata Greek Taverna , 2003 BCHRT 23; and Young Worker v. Heirloom and another, 2023 BCHRT 137. Here, the Worker’s case against the Corporate Respondents is relatively novel and she is obviously from a vulnerable group of young persons facing sexual harassment and assault in the workplace. I agree with the Worker that her case advances the purposes of the Code where allowing it to proceed would encourage complainants, especially minors, to file sexual assault complaints. On balance, I am satisfied that the nature of the Worker’s complaint attracts the public interest in allowing it to proceed late filed.
[36] By way of summary, I find the public interest is attracted in allowing the late filed allegations in this complaint to proceed. While the complaint was significantly late filed, the Worker’s reasons for late filing, including the effects of being traumatized by the events and her young age, along with the novelty of the case, attract the public interest such that it can proceed late filed.
[37] I note these conclusions about the public interest under s. 22(3) would also apply to any late filed complaint allegations made against the Supervisor should I be wrong about the complaint against him being a continuing contravention of the Code: s. 22(2).
C. Substantial Prejudice
[38] The Worker submits her delay in filing will result in no prejudice to the Respondents since they have had notice of her complaint about the Supervisor’s allegedly discriminatory conduct since August 2021 and afterwards. This should have put the Respondents on notice to take the necessary steps to preserve and gather any relevant evidence. As noted above, the Respondents did not file any time limit response submissions in this matter, despite being provided an opportunity to do so.
[39] In my view, no substantial prejudice would result to the Respondents because of the delay. In circumstances where the Respondents have not provided any evidence indicating the existence of substantial prejudice, I accept the Worker’s submission they were not prejudiced as they had notice of her sexual harassment and assault allegations.
V Conclusion
[40] For these reasons, the allegations against the Supervisor are accepted for filing in time as a continuing contravention under s. 22(2) of the Code, and the late filed allegations against the Corporate Respondents are accepted for filing under s. 22(3) of the Code .
Steven Adamson
Tribunal Member