Worker J v. Workplace K and another, 2024 BCHRT 201
Date Issued: July 4, 2024
File: CS-002449
Indexed as: Worker J v. Workplace K and another, 2024 BCHRT 201
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Worker J
COMPLAINANT
AND:
Workplace K and LX
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Robin Dean
Agent for the Complainant: Wife
Counsel for the Respondents: Paul Pulver
I INTRODUCTION
[1] This is an application to dismiss Worker J’s complaint on timeliness grounds under s. 27(1)(g) of the Human Rights Code. Worker J alleges that the Respondents, Workplace K and LX, discriminated against him in employment based on race, colour, place of origin, and religion contrary to s. 13 of the Code. In his complaint, which was filed November 2, 2020, he says that he was subjected to derogatory comments about his accent and colour as well as violence by staff and guests of the Respondents’ restaurant while he was general manager. In an amendment to the complaint, filed November 6, 2020, Worker J alleges that the Respondents blocked his email and removed his name from the company’s Facebook page for complaining about what he alleges occurred in the workplace.
[2] The issues I must decide are whether Worker J’s complaint and the amendment are late filed and, if so, whether it is in the public interest to accept them. If I determine that the public interest favours accepting the complaint and the amendment, I must examine whether substantial prejudice would result from the delay.
[3] The last alleged contraventions of the Codeoccurred on September 21 and 22, 2019, more than one year before Worker J filed his complaint. The allegations in the amendment to the complaint are undated but the materials before me indicate that they occurred on October 29, 2019, more than one year before Worker J filed the amendment. Therefore, I find that both the complaint and the amendment are late filed. Because Worker J has not convinced me to exercise my discretion to accept the late-filed complaint and its amendment in the public interest, I dismiss the complaint and the amendment.
II DECISION
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.
[5] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 of the Code provides:
(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.
[6] Section 22 of the Code is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[7] Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint. The Respondents argue that all the allegations in Worker J’s complaint are late filed and should be dismissed under s. 27(1)(g) of the Code. Worker J does not dispute that his complaint is late filed but argues that the Tribunal should exercise its discretion to accept the complaint under s.22(3) of the Code.
[8] As I am satisfied that the original complaint is late filed, the issue I must decide is whether to exercise my discretion to accept the complaint because it is in the public interest to do so and whether there is no substantial prejudice to any person because of the delay: Code, s. 22(3), School District v. Parent obo the Child , 2018 BCCA 136 at para. 68.
A. Is the Original Complaint Late Filed?
[9] The complaint was filed on November 2, 2020 and the amendment on November 6, 2020. To comply with the one-year time limit an alleged instance of discrimination would have to have occurred on or after November 2, 2019 or in the case of the retaliation allegations contained in the amendment, on or after November 6, 2019.
[10] The last alleged instance of discrimination set out in the complaint occurred on September 21 and 22, 2019. Worker J does not dispute, and I accept, that the allegations in the complaint are late filed.
[11] The allegations in the amendment are undated. Based on my review of the materials before me, these instances of alleged discrimination occurred on October 29, 2019, when Worker J’s employment was terminated. In light of this, I find that the allegations in the amendment are late filed.
[12] Given my finding that the complaint is late-filed, I now consider whether to accept all or part of the complaint under s. 22(3) of the Code. The onus is on Worker J to establish that relieving against the time limits would be in the public interest and would not result in substantial prejudice to any person. Worker J must establish both of these elements in order to obtain relief against the Code’s time limits: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12; O’Hara v. British Columbia (Human Rights Commission), 2002 BCSC 559 at para. 20.
B. Public Interest
[13] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, 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 and 63; Hoang v. Warnaco and Johns , 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. The analysis is multifaceted; the factors I have identified are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[14] Worker J’s only argument regarding public interest is that his mental condition precluded him from filing his complaint on time. For the following reasons, I have determined that Worker J has not satisfied the burden of establishing it is in the public interest to accept the complaint and accordingly, I decline to exercise my discretion to accept his complaint for filing under s. 22(3). I consider the relevant factors and Worker J’s arguments in turn.
[15] First, I consider the length of the delay. Worker J’s complaint was filed six weeks late, and his amendment a week late. These delays are not significant: Worrell v. Brinkman & Associates and another , 2010 BCHRT 89 at para. 16. However, the length of the delay alone is not determinative of the public interest issue. The Tribunal has dismissed complaints with similar delays. The assessment of the public interest is multifaceted and even short delays can be outweighed by other factors.
[16] Second, I consider Worker J’s reasons for the delay. Worker J explains that the delay occurred for mental health reasons. Where the delay is due to a disabling condition, the Tribunal has noted 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 29at para. 42. There should be medical or other evidence to indicate that the complainant’s mental disability impeded their ability to file their complaint on time.
[17] Worker J says that a critical medical issue impacted his mental health and his ability to participate in the human rights complaint process. I acknowledge that the complaint process can be difficult for complainants as it often requires them to relive moments that may have caused them substantial mental distress. Here, however, I do not have enough evidence to conclude that Worker J could not have filed his complaint on time, even though it may have been difficult to do so.
[18] Worker J has submitted doctors’ notes and other medical evidence that indicate he was struggling with significant mental health issues between November 2019 and March 2020, which was during the one-year period after the alleged discrimination. However, there is no evidence from which I can conclude that Worker J was could not have filed his complaint in the six months between March 2020 and September 2020. I have evidence that Worker J was seeing a registered clinical counsellor during this time, but that is not enough to show that his ability to file a complaint was impeded. The burden rests on Worker J to satisfy the Tribunal that the late-filed complaint should be accepted for filing. In my view, he has not done so. The evidence does not indicate that Worker J was not able to file his complaint within the time limit set out in the Code.
[19] Third, in determining whether accepting a late-filed complaint is in the public interest, the Tribunal also considers the public interest in the complaint itself. To assess this factor, the Tribunal has considered 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 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others , 2013 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others , 2010 BHRT 224 at para. 60. The Tribunal has also considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand: Mzite at para. 67.
[20] I find there is little public interest in the complaint itself. Worker J’s complaint involves allegations of discrimination and harassment in the workplace based on his race, colour, place of origin, and religion. This alleged discrimination includes derogatory comments on the part of his employer. While I acknowledge that Worker J says that this alleged discrimination caused him significant distress, the Tribunal routinely deals with cases involving derogatory comments about various personal characteristics in the employment context. I am not persuaded that his complaint is sufficiently novel or unique to attract the public interest.
[21] For these reasons, I do not find that it is in the public interest to accept the late-filed complaint, and I need not address the issue of whether substantial prejudice would result.
III CONCLUSION
[22] I grant the Respondents’ application to dismiss Worker J’s complaint. His complaint and the amendment will not proceed.
Robin Dean
Tribunal Member
This version of the Reasons for Decision has been amended in accordance with the Correction of October 3, 2024
1. This corrects the decision in accordance with the Tribunal’s decision in Worker J v. Workplace K and another (No. 2), 2024 BCHRT 280.
2. The names of the parties are anonymized to Worker J, Workplace K, and LX.