Reynolds v. Legislative Assembly of British Columbia, 2024 BCHRT 200
Date Issued: July 4, 2024
File: CS-008503
Indexed as: Reynolds v. Legislative Assembly of British Columbia, 2024 BCHRT 200
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:
Paul Reynolds
COMPLAINANT
AND:
Legislative Assembly of British Columbia
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Meredith Shaw
Counsel for the Respondent: Marcia McNeil
I INTRODUCTION
[1] On December 18, 2022, Paul Reynolds filed a complaint based on Indigenous identity and race contrary to s. 13 of the Human Rights Code [Code], against the Legislative Assembly of British Columbia [Legislature].
[2] The issue before me is whether to accept the complaint for filing against the Legislature as a continuing contravention of the Code s. 22(2). If not, whether it is in the public interest to accept any late-filed allegations of discrimination under s. 22(3) of the Code. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I accept the complaint for filing as a continuing contravention of the Code: s. 22(2).
II BACKGROUND
[4] On September 23, 2019, Constable Paul Reynolds [the Constable], who is Indigenous, was appointed a member of the Legislative Assembly Protective Services [LAPS]. This role involves preserving the peace and order of the Legislature.
[5] On September 23, 2021, the Constable went off work for reasons related to his mental disability. His claim for an adjustment disorder arising from workplace bullying and harassment was accepted by WorkSafeBC with temporary wage loss benefits starting on September 25, 2021. It appears he transitioned from WorkSafeBC temporary disability benefits to long-term disability benefits some time in late 2022.
[6] The Constable alleges he experienced discriminatory comments and conduct by co-workers throughout his employment at the Legislature. He further alleges discrimination based on the employer’s inadequate response to his concerns about the discriminatory conduct of his co-workers.
[7] The central issue in this decision is whether arguable contraventions capable of forming a continuing contravention, exist for a multi-year period during the Constable’s employment with the Legislature. As such, is it necessary to set out these events in detail below.
[8] The following allegations are found in the Constable’s December 2022 complaint form and his later amendment received in September 2023.
[9] In September to October 2019, the Constable alleges a co-worker, Constable D [CD], made a statement at work while watching a television news piece about Indigenous people engaged in a protest to the effect that “we are always catering to these people”. It is alleged that CD also made it clear that he was not happy about the protesting. The Constable also alleges CD approached the Constable to tell him that he “was not wanted on the shift”. The Constable alleges that over the years working with CD he yelled at him in front of other co-workers and tried to intimidate him. This included blocking his car just before shift change at 5:00 AM on September 20, 2020. The Constable alleges that CD did not treat other non-Indigenous co-workers this way and knew he was Indigenous. The Constable alleges his Indigeneity was a factor in CD’s differential negative treatment of him in light of CD’s previously stated negative views about Indigenous people.
[10] In September to October 2019, the Constable alleges on at least two occasions he received Walmart and McDonald’s job applications in his personal work mail slot. He took this to imply he was not fit for the LAPS constable position. The Constable alleges that when he raised these events with the acting Sergeant-at-Arms (Director of Security), the response was unsatisfactory. The Constable says the Director “brushed off” the incidents by claiming, incorrectly, whoever was doing this was putting the job applications in everyone’s mail slots.
[11] In October 2019 to March 2020, the Constable alleges a co-worker, Constable S [CS], showed him a photograph of his father in a Nazi uniform after the Constable disclosed to him that he was Indigenous. A few weeks later the Constable alleges CS called the Constable over to watch a scene from a movie clip entitled “Indian Kick”, which involved a Caucasian man kicking two Indigenous people sitting on a porch. Both CS and the Constable’s supervisor, Sergeant R [SR] were allegedly laughing loudly at the clip. On another occasion the Constable alleges SR called to CS that “there must be some First Nations somewhere down the line”, which caused them to laugh, and they were talking about the Constable. Despite SR being the Constable’s supervisor, he allegedly did nothing to stop this type of negative treatment on the part of CS, choosing instead to actively participate in it.
[12] During his first few months of employment with LAPS, the Constable alleges SR subjected him to closer scrutiny than other constables under his supervision. For example, while other constables were constantly observed using their personal cellphones on duty, SR verbally reprimanded the Constable for using his cellphone at work on one occasion. While the Constable continued to abide by the no cell phone use on duty policy, he observed his co-workers using their phones on duty.
[13] Between October and December 2019, the Constable alleges CS made a caricature portrait of the Constable with black hair in keeping with stereotypical depictions of Indigenous people and placed it on the fridge at work.
[14] Between November 2019 and March 2020, the Constable alleges CS told him that he would not want to be the “shift pinata”. The Constable alleges that this implied that he was the “shift pinata”, meaning team members spoke negatively about him and he was the recipient of “verbal bashings by the team”.
[15] In May 2020, the Constable alleges a co-worker, Constable R [CR], referred to him as being “non-white” after previously referring to him as being white. In and around the same time, CR started making negative comments to the Constable about his weight, including him being fat and stating he hates “fat people in uniform”. The Constable alleges these comments by CR continued throughout the rest of his time at LAPS. CR also allegedly called the Constable “dumb dumb” on June 26, 2020, and possibly other occasions. He further alleges CR rechecked his work while not checking the work of other constables. Based on the timing of these incidents, the Constable alleges his Indigenous identity and race was a factor in CR’s negative and differential treatment of him in the workplace.
[16] In the spring of 2020, the Constable alleges he complained to the Acting Sergeant-at-Arms, Sergeant N [SN], about the conduct of his supervisor, SR. In a meeting with SN and SR, the Constable alleges SR denied the allegations made against him. The Constable alleges SN made no further efforts to receive more information from him and did not follow up with him. The Constable believes no further action was taken in response to his complaint about SR.
[17] On September 28, 2020, the Constable alleges he made a formal complaint about his acting staff sergeant, Sergeant L [SL], related to incidents he does not appear to have described in this complaint. He alleges SL told him there was no policy breach. Despite the Constable raising his concerns about SL’s response with his direct supervisor, he alleges management took no further action and failed to address them.
[18] On January 28, 2021, the Constable alleges his then supervisor, Constable M [CM], failed to respond to his report of ammunition being stolen from his locker at work. The Constable alleges CM made negative comments about other racial and marginalized groups while working with him between April 2020 and September 2021. As such, he alleges CM held a similar view of him as an Indigenous person which was a factor in how he handled his report of stolen ammunition.
[19] On June 5, 2021, the Constable made a formal complaint about the workplace to the Human Resources Director, Ms. S. He alleges Ms. S confirmed at that time that “there is a culture problem in the Sergeant-at-Arms Department” where he worked.
[20] On July 1, 2021, the Constable alleges CM directed the Constable and another Indigenous constable to attend to the rear of the Legislature while other non-Indigenous constables attended the front of the building where a large crowd of celebrants were gathered. The Constable alleges that he and the other Indigenous constable were specifically excluded from the work taking place at the front of the Legislature because of their Indigenous identity and race.
[21] On September 15, 2021, the Constable alleges CM commented that the Constable “was going to commit suicide” and then began laughing. Given CM’s previous conduct, the Constable alleges he inferred that this was part of a pattern of harassment from CM where his Indigenous identity and race was a factor.
[22] The following further allegations are contained in the Constable’s Time Limit Reply [Reply Allegations].
[23] On September 17, 2021, two co-workers, Constables DM and LS [CDM and CLS] allegedly mocked and insulted the Constable, including making references to his physical appearance. The Constable alleges his supervisor, CM, did nothing to stop the attack, but was rather an active participant.
[24] In September 2021, the Constable alleges the Legislature started an investigation into his complaints about the workplace. He states that it was not until October 2021 that the Legislature provided him with the official complaint form despite him having made complaints much earlier.
[25] The Constable alleges that throughout his time at LAPS he was never added to the internal list of constables, despite other colleagues who started later than him being put on the list. He believes the list was created by an unnamed co-worker and alleges he reasonably believed this to be another means of excluding him by this co-worker as part of a pattern of discriminatory harassment he faced in the workplace.
[26] On May 11, 2022, the Legislature sent the Constable a letter informing him that his respectful workplace policy complaint was denied following an investigation. As such, no further action was taken in response to his complaint. However, the letter says to the Constable that the Deputy Sergeant-at-Arms would follow up with him in the days ahead to discuss supports to assist him in his return to work.
[27] The Constable alleges there were procedural flaws in the workplace investigation as a significant time lag occurred between his report to Ms. S in June 2021 and the conclusion of the investigation in the spring of 2022. Further, the Constable alleges that he reached out to the Legislature on two occasions in the first week of June 2022 to clarify the report findings but was told on June 9, 2022, that no additional information would be provided apart from that already found in the letter.
[28] On June 10, 2022, the Constable alleges he reached out to human resources at the Legislature to ask them to pass on his safety concerns related to returning to work to the Deputy Sergeant-at-Arms.
[29] On October 3, 2022, the Constable alleges the Legislature’s human resources department responded to his request for assurances that he would not be retaliated against by hostile co-workers when returning to work with a statement that the employer was committed to enforcing its respectful workplace policy. The Constable alleges this response failed to provide any information about specific measures that would be taken to ensure it was safe to return to the workplace and did not provide him with an opening for further discussion regarding his concerns.
[30] On November 15, 2022, the Constable alleges the Legislature treated him differently from other employees on long-term disability who were non-Indigenous as he was asked to return all the property belonging to the Legislature, including his badge and ID. The Constable states that he knew his former supervisor, a Caucasian man, was on medical leave for over 18 months without any such a request being made of him. Considering the greater scrutiny that the Constable allegedly faced at work, he believes that this incident was also part of the broader pattern of differential treatment and increased scrutiny he faced in the workplace due to his personal characteristics.
III PRELIMINARY MATTERS
a. Respondents named in the Complaint
[31] There may be some confusion in this case as to whether the Constable named any individual respondents in his complaint. I note the Constable referred to the Legislature and “others” as respondents in his Time Limit Reply.
[32] The Constable’s December 18, 2022, complaint form only references the Legislature in the respondent naming section of the form. However, in the details of discrimination section his information is set out under the names of three individual respondents. On September 13, 2023, the Constable filed an amendment to add other individual respondents and provided details of discrimination related to each person. However, the Constable clarified in his September 26, 2023, telephone conversation with the Tribunal’s Indigenous Navigator that he did not want to proceed against any of his individual co-workers as respondents since the Legislature is responsible for their conduct. As such, the Tribunal did not allow the complaint to proceed against any individual co-worker respondents in the October 12, 2023, notice of late filed complaint and none were considered in rendering this time limits decision.
b. Consideration of Reply Allegations and arguments
[33] As noted above, the Constable’s November 30, 2023, Time Limit Reply contains further allegations of discrimination and new reasons and arguments related to the timeliness of the complaint. The Legislature applied to have these Reply Allegations rejected as inappropriate. In the alternative, the Legislature applied to provide further submissions in response to the Reply Allegations.
[34] The Tribunal’s time limits submissions process involves two submissions: the Time Limit Response [Response], and the Time Limit Reply [Reply]: Rule 12(6). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure [Rules], Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2) , 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[35] The Legislature submits that the Constable used the Reply as a mechanism to not only expand upon and bolster arguments made directly in his initial complaint form information, but also to advance new allegations of discrimination and justifications for late filing them. The Legislature submits it did not have an opportunity to make a substantive response to the Constable’s new reasons for late filing or his new allegations of discrimination respecting the Legislature’s undertaking of its workplace investigation from late 2021 until early 2022, and actions it took arising from the investigation findings from mid 2022 until October 2022 [the Investigation Allegations]. Further, the Legislature submitsit did not have an opportunity to make submissions in response to the Constable’s new property returning allegation in November 2022 [the Return of Property Allegation ].While recognizing the Constable did not have legal counsel prior to making his Reply, the Legislature argues it would be overly generous and unsupportive of the written record to allow him to expand the scope of the complaint in the Reply. The Legislature argues any such changes to the Complaint should be made by way of an amendment. Overall, the Legislature argues the Constable’s new allegations raised for the first time in the Reply should not be accepted as they are solely an attempt to bring his complaint in under s. 22(2) as a continuing contravention of theCode.
[36] The Constable submits it is well established that complaint participants should be permitted to put their “best foot forward” with the assistance of counsel. The Constable argues the further details about the workplace investigation were provided in response to the Legislature’s statement in its Response that the employer took the respectful workplace complaints seriously and appointed an independent external investigator to conduct a respectful workplace investigation under its Respectful Workplace Policy, and that the Constable was on paid WorkSafeBC leave throughout the investigation process and no further conduct took place during this time. Further, the Constable submits it was open to him to provide further allegations in the Reply as the Tribunal’s forms are not equivalent to pleadings in a civil litigation process. On the contrary, the Constable argues that a party is not limited to the particulars of their initial complaint in the same way in which they might be in a civil procedure.
[37] After considering information on file and the parties’ submissions, I have decided to accept the Constable’s Reply Allegations for consideration in this time limits decision. The Constable was self-represented at the time he filed the complaint initiating form and when he later provided several complaint amendments. His case involves racism allegations and the late filing of a complaint, both issues of which can be particularly challenging to set out for those unfamiliar with the Tribunal’s process and human rights law. Prior to filing his Reply, the Constable managed to secure the assistance of a lawyer from the Community Legal Assistance Society [CLAS]. The delay in securing free legal advice from CLAS is not surprising given CLAS’ limited resources and its usual practice of not representing complainants prior to the Tribunal deciding a complaint can proceed beyond the initial stages in the process. With the benefit of an experienced human rights lawyer, it comes as no surprise that the Constable’s complaint allegations and arguments would include changes necessary to set out his best possible complaint before the Tribunal. In circumstances where a self-represented party manages to secure legal representation before the submissions process is closed in a time limits matter, in my view the Tribunal ought to provide some flexibility in considering further allegations and arguments. Of course, allowing this flexibility must be balanced with providing respondents an opportunity to make a full submission on the further allegations and arguments. In this case, the Legislature recognized that it had not addressed the Reply Allegations and arguments in its Response and sought permission to provide a further submission in response. I agree that such further submissions were warranted and have considered them in making this decision.
[38] I disagree with the Legislature that it was necessary for the Constable to formally apply to amend his complaint to add his Reply Allegations and further arguments. While appreciating that Rule 24(4) states that a complainant must apply to amend a complaint if an allegation is outside the time limit for filing, which would be the case for several of the Constable’s Reply Allegations, the Reply can be seen as an amendment form for the purposes of Rule 24(4) with the ensuing opportunity for submissions from the Legislature set out in Rule 28(5). In my view, forcing the Constable to file a further application to amend would be an unnecessarily technical requirement when the Reply can be treated as an amendment and the Legislature was provided an opportunity to make submissions in response. Here, the further information was clearly set out by the Constable and going forward the parties and the Tribunal will have not any troubles related to discerning what allegations are at play.
I V ANALYSIS AND DECISION
[39] The central issue in this decision is whether arguable contraventions capable of forming a continuing contravention of the Code, exist for a multi-year period during the Constable’s employment with the Legislature.
[40] 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.
[41] 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 and to allow respondents the comfort of performing their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[42] The Constable filed this complaint on December 18, 2022. To comply with the one-year time limit under s. 22(1) of the Code, the last alleged act of discrimination had to occur on or after December 18, 2021.
[43] 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.
[44] 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.
[45] The Constable submits that the complaint alleges a continuing contravention of the Code that is anchored in several timely incidents leading up to the end of 2022. As such, he says the Tribunal should accept the entirety of his complaint under s. 22(2). The Constable argues the Investigation Allegations are of the same character as his out of time allegations, which involve discrimination allegations based on racism and Indigenous identity and a failure to appropriately respond to such discrimination. The Constable further argues the Return of Property Allegation is of a similar character to his prior untimely allegations as they involve him facing particular scrutiny and differential treatment in a workplace marked by negative comments about Indigenous people and other racialized groups. The Constable submits the gap in time between the allegations relating to comments and conduct that he faced in the workplace up to September 2021, and the 2022 Investigation Allegations and Return of Property allegation is explained by the fact that he was away from the work environment during this period, thus limiting the parties’ points of contact.
[46] In contrast, the Legislature submits there are no timely allegations of discrimination capable of supporting a continuing contravention. First, the Legislature argues that the Investigation Allegations are not actually allegations, but the continuing consequences of the prior allegations, which are therefore incapable of disclosing any potential act of discrimination. Second, the Legislature argues that the Return of Property Allegation, while an arguable contravention of the Code , is of a different nature as it relates to the commencement of the Constable’s long-term disability leave as opposed to his interactions in the workplace during the time when he was at work performing his duties.
1. Has the Constable put forward a timely allegation of discrimination in his complaint?
[47] I have first considered whether the complaint contains any allegations of discrimination within the one-year time limit. After reviewing the Constable’s initial complaint information and Reply allegations, I am satisfied that he set out timely allegations of discrimination related to the Legislature’s negative treatment of him in the workplace where his Indigenous identity and race was a factor in the harms alleged: Moore v. British Columbia (Education), 2012 SCC 61 at para 33.
[48] I start with a consideration of the Investigation Allegations. The Constable alleges his complaints of discrimination related to his Indigenous identity in the workplace were not taken seriously during his time at LAPS. This continued with the Legislature’s decision to deny his respectful workplace policy complaint. First, the Constable alleges the Legislature dragged out conducting the investigation for months after he approached Ms. S in mid 2021. Second, the Constable alleges the Legislature refused to provide any follow up information beyond the limited reasons for decision found in the May 11, 2022, decision letter. Third, when the Constable sought information about measures that would be taken to ensure he would not be further harmed when he returned to work after mid 2022, he alleges the Legislature refused to provide any information about taking concrete steps to prevent more harms apart from reiterating a commitment to the respectful workplace policy. The Constable alleges the Legislature’s handling of the respectful workplace investigation results and failure to take additional steps to address his specific complaints have caused an adverse impact in his employment by allowing the poisoned work environment to endure, which resulted in him continuing to feel unsafe returning to his job. For the Constable, the failure to adequately investigate and address an internal complaint of discrimination is related to his personal characteristics, which are the bases on which he brought the complaints of discrimination forward. This failure also allegedly violates the Constable’s particular need for safety as a racialized Indigenous man working in a predominantly Caucasian workforce for a government employer and, as such, is related to his personal characteristics.
[49] In my view, the allegations regarding the actions of the Legislature in relation tothe Investigation Allegationsare arguable contraventions of the Code . I disagree with the Legislature that this conduct does not disclose potential acts of discrimination as the conduct of the investigation or outcome of same does not disclose potential acts of discrimination but rather are more properly characterized as “continuing consequences” related to the Constable’s allegations. In my view, these allegations go beyond an employer simply rendering a decision as a consequence of prior discrimination allegations. Here, the Constable is alleging the Legislature continued a pattern of not taking his discrimination complaints seriously by failing to initiate the investigation promptly, refusing to further engage with him with respect to clarifying its decision to deny his complaint, and by not agreeing to inform him of any concrete measures it was willing to take to ensure he would not be harmed when he returned to work after mid 2022. I agree that the Constable has made the connection, for the purposes of this decision, between the failure to adequately investigate and address an internal complaint of discrimination and his personal characteristics, which are the bases on which he brought the complaints of discrimination forward. I further agree with the Constable that the Legislature’s failure to take steps for his safe return allegedly violates the Constable’s particular need for safety as a racialized Indigenous man working in a predominantly Caucasian workforce for a government employer and, as such, is related to his personal characteristics. In my view, the Constable has established that the Legislature’s conduct in relation to the Investigation Allegations, contains timely allegations of negative treatment in the workplace where his Indigenous identity and race was a factor in the harms alleged.
[50] I have also considered whether the Legislature’s mid November 2022 request that all the property belonging to the Legislature, including the Constable’s badge and ID, be returned when he went on to long-term disability. I conclude this is an arguable contravention of the Code because this allegation includes negative treatment of the Constable in the workplace where his Indigenous identity and race was a factor in the harms alleged. In particular, the Constable alleges differential treatment when a Caucasian employee who was on medical leave for a lengthy period was not similarly asked to return the Legislature’s property, including his badge and ID. He alleges that given the greater scrutiny he faced in the workplace; it is reasonable to infer that this incident was also part of the broader pattern of differential treatment and increased scrutiny he faced in the workplace because of his protected characteristics. The Legislature does not appear to take issue with the Return of Property Allegation being an arguable contravention of the Code .
[51] Having found that the Constable alleges arguable contraventions of the Codewithin one year of filing the complaint, I now turn to whether allegations file before December 18, 2021, are part of a continuing contravention.
2. Has the Constable alleged a continuing contravention, and if so, how far back does the alleged contravention go?
[52] As I explain below, I have determined that there is a succession of separate discriminatory acts of the same character that allege contraventions of the Code extending back to September 2019.
a. Character of the allegations
[53] I start with a consideration of whether the allegations in question are of a similar character. The Constable argues the Investigation Allegations are of the same character as his other out of time allegations involving discrimination allegations based on racism and Indigenous identity, and a failure to appropriately respond to such discrimination. The Constable further argues the Return of Property Allegation is of a similar character to his prior untimely allegations as they all involve him facing particular scrutiny and differential treatment in a workplace marked by negative comments about Indigenous people and other racialized groups.
[54] As noted above, the Legislature argues the Investigation Allegations are not arguable contraventions of the Codeand the Return of Property Allegation is not of a sufficiently similar character to the untimely allegations. Specifically, it was argued that the Return of Property allegation stems from the Legislature’s interactions with the Constable respecting the commencement of his long-term disability leave, and, unlike the rest of the allegations in the Complaint, is not related to his interactions in the workplace during the course of his duties.
[55] From my review of the allegations on file and the parties’ submissions, I have decided that the Return of Property Allegation is of a similar nature to the Constable’s untimely allegations in that he alleges being treated differently from others in the workplace where his Indigeneity was a factor in harms alleged. The timely Return of Property Allegation involves the Constable being more closely scrutinized than his non-Indigenous co-workers in that he was forced to return his work property to the Legislature when off work for extended period due to disability. This occurred despite a non-Indigenous coworker who was also off work on disability for an extended period not facing a similar requirement. In my view, this allegation is similar in nature to the Constable’s other untimely allegations. For example, when the Constable was told not to use his cellphone at work while his non-Indigenous colleagues were permitted to do so, and him having his work monitored for deficiencies when others who were non-Indigenous were not similarly scrutinized.
[56] I further conclude that the Return of Property Allegation is similar in nature to the untimely allegations that the Constable did not belong in the workplace for reasons related to his Indigeneity. These include the Constable being:
- told he was not wanted on the shift
- subjected to racist comments and media about Indigenous people
- referred to at the shift pinata
· told he did not physically look like someone who should be in the role
- told and shown he was not intelligent enough to do the job
- being placed at the rear of the legislature on Canada Day
- told he was going to commit suicide
- unworthy of being included on an internal list of constables
The timely Return of Property Allegation involves the Legislature taking back the Constable’s badge and uniform. For peace officers, it is common knowledge that the removal of their badge and uniform is the ultimate symbolic act of them not belonging. I find the Return of Property Allegation is similar in nature to the other allegations involving the Constable being informed he did not belong in the workplace. I disagree with the Legislature that just because the Return of Property Allegation took place while the Constable was off work for medical reasons it should necessarily follow that this allegation is distinct from others that took place while he was at work. A more useful measure of similarity is one that considers that these allegations are all related to the Constable’s work relationship with the Legislature. This similarity is increased where all the allegations involve the Constable being subject to increased scrutiny, unlike his non-Indigenous co-workers, and by a pattern of him being rejected as not belonging to LAPS for reasons related, to some extent, to his Indigeneity.
[57] I have also considered the character of the Investigation Allegations and whether they are sufficiently similar to the Constable’s untimely allegations for the purposes of deciding whether a continuing contravention exists in this case. These allegations involve the Legislature failing to appropriately respond to the Constable’s complaints to management about being mistreated at work for reasons related to his Indigeneity. In my view, the Investigation Allegations are like other untimely allegations in the fall of 2019 and spring of 2020 when the Constable states he complained to various people in management about the discrimination he was experiencing to no avail. He further alleges making other complaints to management about various forms of mistreatment he was experiencing at work in 2021 that are similar to the Investigation Allegations. In January 2021 he alleges no meaningful follow up occurred when he reported ammunition disappearing from his locker. In June 2021 the Constable alleges his report of mistreatment in the workplace to the human resources director resulted in her admitting there was a cultural problem at LAPS without taking any immediate steps in response. In all these allegations, the Constable says his Indigeneity was a factor in management’s failure to act or make any significant changes to address his concerns.
b. Gaps in time between the allegations
[58] As noted above, a relevant consideration when reviewing for a succession of allegations under s. 22(2), is always whether there are time gaps between the allegations. The Legislature does not appear to have provided any gaps arguments in its further submissions responding to the Constable’s Reply. However, the burden is on the Constable, not the Legislature, in establishing that his complaint alleges a timely continuing contravention.
[59] The Constable one gap in time between the allegations relating to comments and conduct that he faced in the workplace up to September 2021 until the timely allegations related to the Investigation Allegations and Return of Property Allegation in 2022. He submits this gap is explained by the fact that he was away from the work environment during this period, thus limiting the parties’ points of contact.
[60] After reviewing the information on file, I conclude the allegations in question happened in succession to establish a continuing contravention. The allegations took place over a period of approximately three years from the September 2019 until the November 2022. During that timeframe individual allegations occurred at regular intervals. Other allegations, such as the rechecking of the Constable’s work, the criticism of his weight, and him being barred from personal cellphone usage, occurred on an ongoing basis during portions or all this timeframe. I agree with the Constable that during the three years in question, there is one significant gap where nothing occurred from the time that he went off work in September 2021 until the timely allegations from the receipt of the workplace investigation outcome in May 2022 and the recall of his badge and other property in November 2022. This gap is explainable as the Constable was off work away from daily contact with his co-workers and management during that period.
[61] The Complaint can proceed under s. 22(2) of the Code for events from September 2019 to November 2022. As such, it is unnecessary for me to determine whether it is in the public interest to allow this complaint to proceed, and no substantial prejudice will result to any person because of the delay pursuant to Code s. 22(3).
V CONCLUSION
[62] For these reasons, the complaint is accepted for filing based on Indigenous identity and race as it alleges a continuing contravention of the Code for events from September 2019 to November 2022.
Steven Adamson
Tribunal Member