Ireland v. Talize and others, 2024 BCHRT 212
Date Issued: July 19, 2024
File: CS-008144
Indexed as: Ireland v. Talize and others, 2024 BCHRT 212
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:
Laura Ireland
COMPLAINANT
AND:
Talize Inc. and Brandon Parrott and Patricia Benson and Jill Braybrook and Leanne Beyers and Maureen Crowder
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: Laura Ireland
Counsel for the Respondents:
Mark Bout
I INTRODUCTION
[1] On October 19, 2022, Laura Ireland filed a complaint based on physical disability and age contrary to s. 13 of the Human Rights Code [Code], against her former employer, Talize Inc. [Talize], and a number of existing and former management staff, namely Patricia Benson, Jill Braybrook, Leanne Beyers and Maureen Crowder [together the Respondents].
[2] The issue before me is 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 do not find it is in the public interest to allow the proceed late filed: s. 22(3).
II BACKGROUND
[4] In October 2017, Ms. Ireland started working for Talize, a fashion retailer, and was engaged in clothing pricing duties.
[5] Ms. Ireland does not have any sense of smell, which is a congenital condition. She alleges this disability prevented her from performing clothing sorting duties for Talize because a sense of smell was needed to identify the presence of clothing odours.
[6] Ms. Ireland also reports having a long-standing chronic pain / occipital neuralgia condition that was managed without multiple prescription drugs prior to working at Talize.
[7] Ms. Ireland alleges Talize gave its older employees, including herself, harder physical tasks to perform than its younger employees. She believes this was done because older staff would do whatever they were told to do since they were more hard working.
[8] Ms. Ireland alleges some time prior to mid 2019, she was passed over for a promotion into a management position in favour of a younger co-worker who got the job.
[9] In May 2019, Ms. Ireland alleges the newly promoted manager moved her from pricing to sorting work within the production department, despite her lacking a sense of smell needed to check for clothing odours. She alleges her new job duties required repetitive head movements, which resulted in months of suffering due to headaches caused by an aggravation of her occipital neuralgia. Ms. Ireland further alleges numerous bullying and harassment incidents by the Respondents in relation to the performance of her work duties and her WorkSafeBC claims.
[10] In January 2020, Ms. Ireland alleges Talize moved her from production to operations work in retail sales at the store in what appears to have been an accommodation of her disabilities.
[11] On July 26, 2020, Ms. Ireland reports fracturing several ribs after falling off a chair at work. She alleges that she eventually booked off work because moving around at work increased her pain and management staff failed to accommodate her disability. Ms. Ireland reports filing an additional WorkSafeBC claim for this injury.
[12] On August 31, 2020, Ms. Ireland alleges she fell at home in the driveway, exacerbating her ongoing rib pain problem. Ms. Ireland reports further issues with management failing to accommodate her rib pain related disabilities at work in September and early October 2020.
[13] On October 6, 2020, Ms. Ireland alleges her employment was terminated for reasons unrelated to her disabilities.
III ANALYSIS AND DECISION
[14] 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.
[15] 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.
[16] The central issue in this decision is whether it is in the public interest to allow Ms. Ireland’s late-filed allegations to proceed: s. 22(3).
A. Time Limit
[17] The complaint was filed on October 19, 2022. 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 October 19, 2021.
[18] The events in question occurred from mid 2019 until Ms. Ireland’s termination on October 6, 2020. Ms. Ireland acknowledges her complaint was late filed in the complaint initiating form. As such, I find her complaint was late filed.
[19] Having found the allegations in this case were late filed, 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
[20] 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.
[21] I have first considered the length of delay in filing. The allegations in this case occurred during Ms. Ireland’s employment at Talize ending on October 6, 2020. As such, the complaint allegations are more than 12 months late. A delay of one year is considered by the Tribunal to be excessive and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another[Naziel-Wilson], 2014 BCHRT 170 at para. 13.
[22] Ms. Ireland provided several reasons for her delay in filing. First, she attributes the delay to her various disabilities that have continued following her departure from Talize. She states that the extreme emotional stress she was under while at work affected her so dramatically that it took a long time for her body to heal after she left. During the timeframe for filing her complaint, Ms. Ireland reports having irritable bowel syndrome, severe daily tension headaches, high blood pressure, nightmares and severe sleep deprivation. She further alleges her increased symptoms necessitated her ongoing use of prescription drugs for anxiety and depression, insomnia, muscle tension, inflammation, high blood pressure and the treatment of irritable bowel syndrome. Ms. Ireland alleges that preparing her complaint also exacerbated her symptoms.
[23] It appears Ms. Ireland also attributes her ongoing disabilities as a barrier to filing because she lacked access to medical treatment. First, she alleges the pandemic made it difficult for her to see her treating physician in-person. She does list, however, numerous telephone appointments she had with her doctor from October to December 2020 without stating how virtual visits negatively affected her ongoing disabilities and her ability to file a complaint. Second, Ms. Ireland reported that she was unable to see a counsellor or psychologist due to the costs associated with this form of treatment . However, she did not provide any information linking a lack of counseling to her inability to file her compliant in time.
[24] Ms. Ireland does report that she participated in a WorkSafeBC sponsored rehabilitation program during the timeframe between leaving her employment with Talize and filing her complaint with the Tribunal. She also admits to being able to interact with WorkSafeBC adjudicative staff at that time. However, she states that the extent of that contact was limited to sending previously prepared complaints about the Respondents’ conduct to WorkSafeBC. Finally, Ms. Ireland reports starting a new part-time position with another employer in mid December 2022 after filing her complaint with the Tribunal. She does not state that she was unable to work in any position prior to starting this job, however.
[25] 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-Wilsonat para. 21.
[26] I accept Ms. Ireland’s evidence that she had multiple disability symptoms that challenged her ability to file a complaint within the one-year timeframe and beyond. However, in my view the severity of her described symptoms does not attract the public interest in allowing the late filed complaint to proceed. In reaching this conclusion, I note that Ms. Ireland has not provided any information, from either herself or from her treating medical practitioners, indicating her disabilities were of a nature that precluded her from filing a complaint with the Tribunal. While she reports daily disability symptoms, they were not of a severity to preclude her from making a complaint within the one year for filing and beyond.
[27] In reaching this conclusion, I note that Ms. Ireland’s level of disability allowed her to engage in some rehabilitation and communicate complaints about the Respondents to WorkSafeBC. With this is mind, I find her level of functioning indicates she had some ability to file a complaint with the Tribunal such that the public interest in allowing her to file late does not attract in this case.
[28] Finally, in reaching this conclusion I note Ms. Ireland’s evidence that she had the ability to complete yearly paperwork necessary to maintain her husband’s permanent disability insurance coverage during the relevant timeframe. She states that her husband is not computer literate and the task of providing copies of all his medical reports, bloodwork and testing, therefore, fell upon her to perform. Ms. Ireland submits that a significant amount of work was involved in preparing this information each year because of the complexity of her husband’s medical issues. While appreciating the enormity of this task and accepting that taking on this work likely took away some time Ms. Ireland could have devoted to filing her own complaint with the Tribunal, her ability to perform this task indicates to me that she could have filed her complaint in time, despite her various disabilities, such that the public interest is not attracted in this case.
[29] Ms. Ireland also reported a flood in her condo as another reason for her delay. She submits that for a period of eight to twelve months, she was unable to do anything other than to empty out her apartment and to clean for dust accumulation during renovations. Ms. Ireland alleges these tasks fell on her as her husband’s disabilities prevented him from doing so. There is no doubt that dealing with a flood and subsequent repairs took some of Ms. Ireland’s time when she was struggling with her own disabilities. However, I am not convinced that these events precluded her from filing a complaint during the one-year timeframe and subsequent year sufficient to attract the public interest in allowing her complaint to proceed late. In my view, Ms. Ireland’s dealings with the flood does not adequately explain why she did not file during the year allotted as there must have been significant periods of time available to her to focus on other matters, including her complaint.
[30] Ms. Ireland also states her delay occurred because it took a long time to prepare her complaint initiating form. She submits that because her case involved many bullying, intimidation and harassment events over the years, a significant amount of time was needed to fill out the form. While sympathetic to Ms. Ireland not being legally trained in preparing her complaint form, I note the form only seeks a brief account of events and limits complainants to attaching only five additional pages. Further, the form clearly states that it is unnecessary to attach any corroborating evidence. I note that Ms. Ireland’s initial complaint was 161 pages long and attached 299 pages of evidence. Because the document far exceeded the length permitted by the Tribunal, and included evidence, it was initially rejected for filing. Ms. Ireland subsequently replaced her complaint form with an abridged version that was permitted to proceed further in the process while retaining the date of filing from the rejected version of her complaint. In these circumstances, Ms. Ireland appears to have created a significant amount of work for herself that was not required to successfully set out her allegations of discrimination in the complaint initiating form. While her approach to filling out the complaint form likely took a lot of time which may have delayed her filing to some extent, in my view this reason does not attract the public interest because the form clearly did not invite her to provide this level of detail or support her allegations with the provision of evidence.
[31] 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.
[32] Ms. Ireland hopes her complaint will change the way Talize treats its workers. Her experience of being belittled and made an example of by management was traumatic and she does not want this to happen to other employees in the location where she worked. While appreciating Ms. Ireland is seeking justice in this case, I am unable to conclude her 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 age, and the jurisprudence in this area is fairly settled.
[33] 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 12 months late and Ms. Ireland’s disability, and her various challenges for her time, do not adequately 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.
IV CONCLUSION
[34] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member