Danchuk v. lululemon athletica inc., 2024 BCHRT 202
Date Issued: July 4, 2024
File: CS-006374Indexed as: Danchuk v. lululemon athletica inc. 2024 BCHRT 202
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:
Matthew Danchuk
COMPLAINANT
AND:
lululemon athletica inc.
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Matthew Danchuk
Counsel for the Respondent: Keri L. Bennett
I INTRODUCTION
[1] On February 28, 2022, Matthew Danchuk filed a complaint based on political belief and physical disability contrary to s. 13 of the Human Rights Code[Code], against lululemon athletica inc. [the Retailer].
[2] The Tribunal’s August 30, 2023, decision allowed the complaint to proceed. However, a later decision, dated October 12, 2023, reconsidered that decision after concluding it had failed to consider Mr. Danchuk’s untimely allegations. The parties were then provided with an opportunity to make submissions on timeliness to assist with this decision about whether the Complaint can proceed.
[3] The issue before me is whether to accept the complaint for filing against the Retailer 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.
[4] For the reasons that follow, I do not accept the complaint for filing as a continuing contravention of the Code: s. 22(2) and I do not find it is in the public interest to allow the complaint to proceed late filed: s. 22(3).
II BACKGROUND
[5] Mr. Danchuk has an ongoing congenital complex heart condition, portal hypertension and liver nodules.
[6] On October 7, 2020, Mr. Danchuk was interviewed for a Product Sustainability Specialist position with the Retailer. During the interview, he alleges the Retailer asked him for his political beliefs regarding the political advocacy group, Black Lives Matter. He also alleges the Retailer sought his opinions regarding the diversity and inclusion programs it was developing. Mr. Danchuk states that he felt uncomfortable sharing his views on these issues and chose instead to disclose his hidden physical disability and discuss its role in informing his views on diversity and inclusion. Mr. Danchuk alleges that the Retailer did not contact him again following the interview, despite telling him it would do so.
[7] On October 27, 2020, Mr. Danchuk alleges that he learned from his previous employer that the Retailer had contacted them without his authorization to investigate his employment history.
[8] On December 4, 2020, Mr. Danchuk alleges that he contacted the Retailer to inquire about an accommodation for his disability in relation to his application for another position, Raw Material Developer. He alleges the Retailer did not respond to his request for an accommodation within the promised two business days.
[9] On December 9, 2020, Mr. Danchuk alleges both his application and the job posting for the Raw Material Developer position were removed from the Retailer’s website.
[10] On December 10, 2020, Mr. Danchuk alleges an individual from the Retailer’s human resources department contacted him by phone to discuss his complaint about the unauthorized reference check it conducted with respect to the Product Sustainability Specialist position. He alleges the caller merely confirmed the position in question was associated with the unauthorized check without seeking further input from him. Mr. Danchuk alleges the caller then proceeded to put off his Raw Material Developer position accommodation request by telling him to wait for a business analyst with the Retailer to contact him about it.
[11] On December 14, 2020, Mr. Danchuk alleges a further Retailer employee called to discuss his accommodation request. The employee confirmed that future interviews with the Retailer would include questions designed to ascertain a candidate’s philosophy on diversity and inclusion. Following a lengthy email exchange, Mr. Danchuk alleges the employee later informed him that the Retailer had selected another candidate for the Raw Material Developer position on January 14, 2021.
[12] On January 27, 2021, Mr. Danchuk reports attending an ethic’s complaint teleconference with the Retailer’s human resources manager. Mr. Danchuk alleges the manager dismissed his complaints while defending the Retailer’s staff. He alleges some of his complaints went uninvestigated and unaddressed in the manager’s later written response. Mr. Danchuk alleges the manager failed to address how he was treated during the phone call on December 14, 2020.
[13] On March 4, 2021, Mr. Danchuk alleges he contacted the Retailer to request copies of its multi-year accessibility plan [the Plan], along with annual reports containing Plan updates, all of which were listed on its website. He alleges the Retailer failed to provide him with these documents in “accessbible formats”, which “further discrmininat[ed] against a job candidate with a disability who was inquiring about [the Retailer’s] public commitments to accommodating and hiring people with disabilities.”
[14] On February 7 and 9, and March 7, 2022, Mr. Danchuk alleges his spouse was contacted three times by an Analyst from the Retailer via LinkedIn to offer her contracting work for animation shorts that were being developed for a series. Mr. Danchuk believes these communications must have been a form of harassment because they coincided with the Retailer being investigated by the Office of the Information and Privacy Commissioner [OIPC] after his complaints to the OIPC about the Retailer.
III ANALYSIS AND DECISION
[15] 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.
[16] 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.
[17] There are two main issues in this case. The first is whether arguable contraventions capable of forming a continuing contravention of the Code, exist during the one year allotted to file a complaint. The second, if no continuing contravention is found, whether it is in the public interest to allow any late-filed allegations to proceed.
A. Arguable contraventions and a continuing contravention
[18] Mr. Danchuk filed the Complaint on February 28, 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 February 28, 2021.
[19] 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.
[20] Every continuing contravention analysis starts with a consideration of whether the complaint contains any allegations of discrimination within the one-year time limit. After reviewing Mr. Danchuk’s complaint form and further submissions information, I am not satisfied that he set out timely allegations of discrimination related to the Retailer’s negative treatment of him in employment and his political belief or physical disabilities were a factor in the harms alleged: Moore v. British Columbia (Education) , 2012 SCC 61 at para 33.
[21] There are three potentially timely allegations put forward by Mr. Danchuk in this case. The first involves his March 4, 2021, request for disclosure of the Retailer’s accessibility Plan and annual reports containing status updates on the Plan [the Accessibility Disclosure ]. Mr. Danchuk alleges the Retailer discriminated by refusing to provide him with these documents. From the information provided, h owever, it does not appear that Mr. Danchuk had any active job applications with the Retailer at the time of his request. His concerns, therefore, appear to be about applicants generally not being able to obtain copies of these documents in “accessible formats”. If I understand Mr. Danchuk’s allegations correctly, the harm alleged relates to others with disabilities not being able to obtain the Accessibility Disclosure in an “accessible format”. This would result in those applying requiring an access accommodation being harmed because they would not be able to obtain information about the Retailer’s accessibility plan or updates.
[22] Without doubting Mr. Danchuk has physical disabilities and was previously involved with applying for several positions with the Retailer, I do not find any harm existed for the purposes of identifying an arguable contravention with respect to his March 4, 2021, request for the Accessibility Disclosure. Mr. Danchuk has not provided any information indicating that he has a physical disability requiring an accommodation with respect to the format of the Accessibility Disclosure. Further, he has not provided any information indicating any delays in the Retailer providing the Accessibility Disclosure which hindered him in any job application that was ongoing as of early March 2021. Where Mr. Danchuk has not provided the necessary harm element of a discrimination allegation, I conclude that the Accessibility Disclosure request is not an arguable contravention of the Code.
[23] Second, I have considered whether the Retailer’s alleged LinkedIn messages harassment of Mr. Danchuk’s spouse on three occasions in February and March 2022 are timely arguable contraventions of the Code with respect to this Complaint. Because these allegations involve harms related to Mr. Danchuk’s spouse, and there is no information indicating any harm to Ms. Danchuk, I have determined that they do not constitute arguable contraventions concerning the Complaint.
[24] Before leaving this issue, I note Mr. Danchuk refers to the possibility of his spouse’s alleged LinkedIn messages harassment complaint being added to the Complaint by an order of the Tribunal to add a party. However, Mr. Danchuk is mistaken about how to amend a complaint to add a complainant and I refer him to the Tribunal’s Rules of Practice and Procedure: Rule 25(1). For Mr. Danchuk’s spouse to be added as a complainant, she would need to file her own complaint and include an application for joining under s. 21(6) of the Code. Where no such complaint and application to join has been filed, I am unable to consider the issue of adding his spouse as a complainant in this matter. Even if Mr. Danchuk’s spouse was added as a complainant, timely allegations related to her could not be used to tether out of time allegations related to Mr. Danchuk without more information indicating he was harmed.
[25] Finally, Mr. Danchuk submits his ethics complaint to the Retailer was filed in time as the process occurred from January 21 to March 18, 2021. It appears that the Manager provided him with a written response to the internal complaint some time in March 2021. While some of the ethic complaint allegations may have been timely, in my view they are not arguable contraventions of the Code. A continuing contravention is not merely one act of discrimination which may have continuing effects or consequences. Here, Mr. Danchuk’s discrimination allegations involve his application for jobs with the Retailer in October and December 2020. Pursuing an internal mechanism for redress by way of his ethics complaint is better described as an ongoing effect or consequence of the earlier allegations rather than actual further allegations of discrimination capable of supporting an arguable contravention. I have, therefore, determined that the allegations related to the ethics complaint are continuing consequences of the earlier untimely allegations related to applying for jobs that do not constitute arguable contraventions capable of forming a continuing contravention.
[26] By way of summary, Mr. Danchuk has not raised any timely allegations of discrimination in the one-year period prior to filing this complaint. The latest allegations occurred up to the end of 2020 with continuing consequences involving the ethics complaint into March 2021 that do not include arguable contraventions. Further, Mr. Danchuk’s allegations concerning the Accessibility Disclosure request in March 2021 and the harassment of his spouse in February and March 2022 do not constitute arguable contraventions of the Code. The complaint is late-filed, and I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint 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: Codes. 22(3). I begin with the public interest determination.
B. Public Interest
[27] Whether it is in the public interest to accept the late-filed complaint 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. The allegations in this case occurred from early October to mid-December 2020. As such, the complaint allegations are over two months late. Such a delay is significant, but may not be inordinate or beyond consideration, if other factors support acceptance: Young v. Home Depot and others, 2018 BCHRT 68 at para. 42.
[29] Mr. Danchuk’s reasons for the delay in filing centre on his physical disabilities during the relevant timeframe. He notes his congenital heart condition, portal hypertension and liver nodules presented health challenges that delayed his filing. In particular, Mr. Danchuk submits his replacement pacemaker surgery in August 2021 delayed his filing of the Complaint.
[30] Where 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 trouble coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21.
[31] Without doubting Mr. Danchuk has various physical disabilities that challenged his ability to file a complaint in time, the evidence fails to indicate he was precluded from filing by his various conditions sufficiently to attract the public interest. In reaching this conclusion, I note that despite his disabilities, Mr. Danchuk demonstrated an ability to make an OIPC complaint regarding the Retailer in March 2021 and interact with that body throughout 2021. In my view, Mr. Danchuk’s ability to complain to OIPC indicates that he was functioning with sufficient capacity to file a complaint in the months leading up to February 2022.
[32] 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.
[33] Mr. Danchuk submits that allowing his complaint to proceed will benefit the public in knowing about the Retailer’s discriminatory hiring practices and mistreatment of people with disabilities. He further submits the Retailer should be forced to refrain from asking job seekers about their political beliefs in interviews because the practice is discriminatory.
[34] In this case, I am unable to conclude Mr. Danchuk’s complaint is unique for the purposes of attracting the public interest in allowing it to proceed. The Tribunal routinely deals with cases involving discrimination in employment based on disability and the jurisprudence in this area is fairly settled. Further, the Tribunal has dealt with political belief complaints in employment: Bratzer v. Victoria Police Department (No. 3) , 2016 BCHRT 50.
[35] In the end, I do not find this Complaint attracts the public interest in allowing it to proceed late filed. The Complaint was filed over two months late and Mr. Danchuk’s disability does not explain the delay. Further, the Complaint is not sufficiently unique or novel to attract the public interest. Having not found it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
V Conclusion
[36] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member