Francis v. Teamsters Local Union No. 155, 2024 BCHRT 225
Date Issued: August 1, 2024
File: CS-005928
Indexed as: Francis v. Teamsters Local Union No. 155, 2024 BCHRT 225
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:
Peter Francis
COMPLAINANT
AND:
Teamsters Local Union No. 155
RESPONDENT
REASONS FOR DECISION
APPLICATION TO ADD A RESPONDENT
RULE 25(2)
Tribunal Member: Theressa Etmanski
Counsel for the Complainant: Gregory Bruce
Counsel for the Respondent: Bennett M. Arsenault
Counsel for 3253 Production Services Inc. (Kung Fu): Kacey Krenn and Kristina Draskovic
I INTRODUCTION
[1] Peter Francis filed a complaint with the Tribunal in which he alleges that Teamsters Local Union No. 155 [Teamsters] discriminated against him in the area of employment, on the grounds of race, colour, mental disability and age.
[2] Mr. Francis now applies under Rule 25(2) of the Tribunal’s Rules of Practice and Procedure [Rules] to add 3253 Production Services Inc. (Kung Fu) [3253 Production] as a respondent to the complaint. Both Teamsters and 3253 Production oppose the application.
[3] This application turns on whether it is in the public interest to add 3253 Production as a respondent to this complaint approximately 22 months after the one-year time limit for filing complaints had passed.
[4] For the following reasons, I deny the application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II PRELIMINARY ISSUE
[5] This complaint was initially filed under s.13 of the Code. Mr. Francis now seeks to amend his complaint to include an allegation that Teamsters breached s. 14 of the Code, discrimination by unions and associations, based on the same facts originally alleged. Teamsters opposes the addition of s. 14 to the complaint on the basis that Mr. Francis has not sought leave from the Tribunal to do so, and that they would suffer prejudice as a result of the addition.
[6] An application is not required to amend a complaint at this stage of the Tribunal’s proceedings. Rule 24(2) states that, subject to Rule 24(4), a complainant may add an allegation to a complaint by filing a Form 3 – Amendment and delivering a copy to the other participants.
[7] Rule 24(2) provides circumstances under which an application is required to amend a complaint. This includes where (a) the amendment adds an allegation that occurred outside of the time limit for filing the complaint under section 22 of the Code; (b) there is an outstanding application to dismiss the complaint; or (c) the hearing date is less than four months from the date the amendment is filed. None of these circumstances apply to the current complaint.
[8] Mr. Francis has met the requirements for amending his complaint to include the area of union and associations pursuant to s. 14 of the Code. His amendment is therefore accepted for filing. The Case Manager will set a deadline for Teamsters to file an amended response to the complaint pursuant to Rule 24(5).
III BACKGROUND
[1] Mr. Francis is a Black man in his fifties. From October 19 through 31, 2020, he was employed by 3253 Production as an assistant chef for Season 1 of the show “Kung Fu”. During this time, he worked on a food truck operated by another chef [Head Chef].
[2] Mr. Francis’s employment with 3253 Production was subject to the terms of the Collective Agreement with the BC Council of Film Unions, of which Teamsters is a member. At the time of his employment, Mr. Francis was not a full member of the union; rather, he was a permittee.
[3] In his complaint, Mr. Francis alleges that the Head Chef bullied him, treated him unfairly, and ultimately terminated his employment. He alleges that Teamsters refused to help him because of his permittee status, and instead advised him to file a complaint with 3253 Production. He did so, and 3253 Production initiated an investigation. However, the Head Chef decided to leave his employment on Kung Fu before the investigation was concluded. Mr. Francis alleges that the investigation was abandoned. 3253 Production disagrees, and say the investigation concluded in February 2021, finding that Mr. Francis’s allegations were not substantiated.
[4] Mr. Francis subsequently worked on other shows. He alleges that the Head Chef’s friends continued to harass him in these settings. He further alleges that these individuals conspired to have him removed from Teamsters. In October 2021, he was placed under suspension by the union and brought before the board for disciplinary action because he was improperly dispatched to another show. His permittee status was terminated.
[5] Mr. Francis filed this complaint with the Tribunal on January 12, 2022. The Tribunal notified Teamsters of the complaint on July 11, 2023. Teamsters filed their response to the complaint on September 1, 2023. Mr. Francis filed the current application to add 3235 Production as a respondent on November 15, 2023.
IV DECISION
[6] Rule 25(2) sets out the following factors that the Tribunal will consider when deciding whether to add a respondent after the one-year time limit for filing complaints:
a. Whether adding the proposed respondent will further the just and timely resolution of the complaint;
b. Whether facts are alleged that, if proven, could establish a contravention of the Code by the proposed respondent; and
c. Whether it is in the public interest to add the proposed respondent to the complaint, and whether no substantial prejudice will result to any person because of the delay.
[7] I first assess whether the complaint alleges facts which, if proven, could amount to discrimination under the Codeby 3253 Production.
A. Allegations of discrimination by 3253 Production
[8] When the Tribunal is assessing whether alleged facts could establish a contravention of the Code, it only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low:Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. The Tribunal will assume that the alleged facts can be proven: Taylor v. BC (Ministry of Attorney General) and others (No. 2) , 2013 BCHRT 173 at paras. 8 and 17.
[9] In this case, Mr. Francis must set out facts that, if proven, could establish that he has a characteristic protected by the Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact : Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[10] As set out above, Mr. Francis alleges that while he worked at 3253 Production, the Head Chef treated him poorly and ultimately fired him. He alleges 3253 Production failed to fully investigate his complaint and that the Head Chef’s friends harassed him while working on different shows in the industry. Mr. Francis says that 3253 Production’s conduct “essentially aided and abetted” the treatment he experienced while working in that setting and opened the door to retaliation against him.
[11] Mr. Francis alleges that “they” made comments about his race, age and mental stability. While he does not specify who “they” are, I understand him to mean the Head Chef and his friends. These comments are the basis of Mr. Francis’s complaint that he was bullied while working at 3253 Production.
[12] Mr. Francis says that 3253 Production’s alleged decision to end its investigation represents discrimination against him and indifference to his situation. He alleges that had the investigation continued, his allegations of discrimination would have resolved, and he believes he would have been permitted to continue work on the show.
[13] Teamsters says that Mr. Francis has presented no evidence that 3253 Production’s decision to end their investigation was discriminatory.
[14] 3253 Production says that the only allegations Mr. Francis has made against them is that they failed to conduct a proper investigation and, as a result, failed to reinstate his employment. 3253 Production says there is no evidence to support that these allegations are contrary to the Code. Further, 3253 Production says that there is no information to support a nexus between their alleged conduct and Mr. Francis’s protected characteristics.
[15] I am satisfied that Mr. Francis’s allegations, if proven, could amount to a breach of the Code. He alleges the Head Chef made discriminatory comments and treated him adversely in his workplace, and that his protected characteristics were expressly referenced in this conduct. In essence, his allegations against 3253 Production are that they failed to respond reasonably and appropriately when he brought forward his complaint of discrimination.
[16] Employers have an obligation to have a discrimination-free work environment. This includes obligations under the Codeto respond reasonably and appropriately to complaints of discrimination: Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121 at para. 10, and a duty to investigate. Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination:Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62at para. 24. In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”: Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272.
[17] With these principles in mind, I find that Mr. Francis has alleged facts against 3253 Production that, if proven, could establish a violation of the Code.
[18] Next, I consider whether adding 3253 Production as a respondent will further the just and timely resolution of the complaint.
B. Just and timely resolution
[19] In the circumstances, I am satisfied that adding 3253 Production would further the just and timely resolution of the complaint.
[20] Mr. Francis says that this complaint reflects the complexity of employment in the film industry given the role of the union. He says that while Teamsters essentially makes employment decisions, 3253 Production also has a responsibility to provide leadership regarding the Code and its own policies. He says that a just and timely resolution of the complaint must involve consideration of all circumstances in the chronology of events, including the alleged inaction and lack of oversight by 3253 Production.
[21] For their part, Teamsters says that allowing this application would not further the just and timely resolution of the complaint. Rather, they say it would convolute the Tribunal’s process and unnecessarily delay the adjudication of the complaint.
[22] 3253 Production says that the majority of allegations in the complaint are against Teamsters. They say that adding them as respondents to the complaint on the singular issue of the investigation into the allegations would unnecessarily complicate the complaint and require the Tribunal to expend additional resources considering the evidence and argument of two respondents. The addition of 3253 Production as a respondent would therefore necessarily elongate the resolution of the complaint.
[23] I find that Mr. Francis has alleged discrimination under s. 13 of the Codethat involves both Teamsters and 3253 Production in an overlapping manner. Should the Tribunal decide that Teamsters is not liable under s. 13 of the Code, Mr. Francis would have no access to a remedy for at least part of his complaint: Buchanan v. Providence Health Care (c.o.b. St. Paul’s Hospital) , 2023 BCHRT 50 at para. 54. I am therefore satisfied that adding 3253 Production will facilitate the just resolution of the complaint.
[24] I also find that adding 3253 Production as a respondent at this stage will not add significant time to the Tribunal’s process for resolving this complaint. The complaint is at an early stage; the Tribunal has not yet set deadlines for the parties to disclose documents or scheduled a hearing.
[25] For these reasons, I am satisfied that adding 3253 Production as a respondent to this complaint will further the just and timely resolution of the complaint.
[26] I now turn to consider whether the Tribunal should add 3253 Production as a respondent outside of the time limit for filing a complaint under the Code.
C. Adding 3253 Production as a respondent outside of the time limit
[27] Under s. 22(3) of the Code, the Tribunal may accept a complaint filed more than one year after the alleged contravention where it determines that it is in the public interest to do so, and no substantial prejudice would result to any person because of the delay. The same considerations apply to an application to add a respondent outside of the one-year time limit.
[28] Below I address the issue of substantial prejudice under s. 22(3)(b), followed by the public interest under s. 22(3)(a).
1. Substantial prejudice
[29] Mr. Francis says there would be no substantial prejudice to any party associated with this application. For the reasons that follow, I agree.
[30] 3253 Production says that Mr. Francis has not met his burden of proving that no substantial prejudice will result because of the delay in filing the complaint. Rather, they say he makes a bald assertion that no prejudice will result which is not supported by any evidence.
[31] While Mr. Francis bears the burden under s. 22(3) of the Code, the Tribunal has held that a respondent is more likely to have information about substantial prejudice: Ferguson v. Ausenco Engineering Canada and another , 2015 BCHRT 28 at para. 87; Shields v. Source Interlink Canada, 2007 BCHRT 164, para. 14; Mother Eat para. 52. As a result, information from all participants is relevant to the current assessment. For example, it is not enough for a respondent to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another , 2009 BCHRT 406 at para. 80.
[32] 3253 Production says it will suffer substantial prejudice as a result of the delay if the complaint is accepted for filing. Specifically, 3253 Production states that the key witness who will be required to provide evidence about certain allegations in the complaint, the Head Chef, is no longer employed by the company.
[33] I am not persuaded that this prejudice is the result of Mr. Francis’s delay in bringing this application. I note that the information provided indicates that the Head Chef’s employment ended in or around January 2021, during the timeframe of the allegations in this complaint. Therefore, 3253 Production appear to be in the same position with respect to this witness as it would have been had the complaint been filed on time.
[34] 3253 Production further says that it is appropriate for the Tribunal to infer that memories dim with time, witnesses move away or die, and documents can be misplaced or destroyed. They note that in the absence of any evidence or substantive submission to the contrary, the Tribunal has presumed this to be the case, creating prejudice: Lynch v. British Columbia (Human Rights Commission) , 2000 BCSC 1419 at para. 27; Muir v. London Drugs, 2014 BCHRT 101 at paras. 22-23. 3253 Production says it is equally appropriate for the Tribunal to presume prejudice in this case.
[35] I agree with 3253 Production that in some cases, the Tribunal may infer substantial prejudice from a long delay in filing a complaint: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 31. This is appropriate when the delay is measured in years rather than months: Alford and another v. B.C. (Ministry of Social Development and Social Innovation) , 2016 BCHRT 64 at para. 64. I therefore accept that 3253 Production may experience some prejudice in these circumstances due to the passage of time.
[36] However, I am not satisfied that the prejudice to 3253 Production rises to the level of “substantial” in this case: Read v. Century Holdings Ltd. Dba Best Western Tsawwassen Inn , 2003 BCHRT 52 at para. 78. While I agree with 3253 Production that they were not on notice of this specific complaint, both Teamsters and 3253 Production have noted that Mr. Francis named 3253 Production as a respondent in a complaint to the Labour Relations Board. They indicate that that complaint was made on the same factual basis as the current complaint. I find that although the details before me are sparse, Mr. Francis’ complaint to the Labour Relations Board against 3253 Production put them on notice of some of his employment-related concerns, and their participation in that process may have facilitated the preservation of relevant evidence and information that could relate to this complaint. 3253 Production have not argued that documents preserved for those proceedings have been misplaced or destroyed.
[37] Similarly, 3253 Production does not suggest that documents related to their internal investigation into Mr. Francis’s allegations are no longer available. Rather, the individual responsible for that investigation has provided an affidavit for the purposes of this application.
[38] Given these considerations, I find that an inference of substantial prejudice would not be appropriate in this case.
[39] Teamsters says it would experience prejudice if the Tribunal were to grant this application, as there has been a significant passage of time since the events underlying this complaint. It says that witnesses’ recollections will be faded and unreliable. As a result, Teamsters says its ability to mount a defence to the complaint will be prejudiced. These concerns arise generally with respect to any delays in adjudicating a complaint; however, I find that Teamsters has not identified any specific prejudice related to adding 3253 Production as a respondent beyond general concerns regarding delays that are equally applicable to responding to the complaint they currently face.
[40] For all of these reasons, I am satisfied that there would be no substantial prejudice to any person should 3253 Production be added as a respondent to this complaint.
2. Public interest
[41] When considering whether it is in the public interest to add a respondent outside of the time limit, the Tribunal will consider a non-exhaustive list of factors, including the length of the delay, reasons for the delay, and the novelty or importance of the human rights issues raised: British Columbia (Minister of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 at para. 53-81; Buchanan at para. 32. These factors are important, but not necessarily determinative. The inquiry is fact and context specific and assessed in accordance with the purposes of the Code: Brelecic v. Mike’s No Frills, 2021 BCHRT 168 at para. 13.
[42] 3253 Production says that Mr. Francis has failed to establish that it is in the public interest to accept the complaint for filing, considering the length of the delay, the reasons for the delay, and the public interest. Teamsters says that it is not in the public interest for the Tribunal to sanction unnecessary delay and complication. Rather, they say, the Tribunal should preserve the integrity of its complaint process and the public interest in efficient adjudication. In these circumstances, I agree.
[43] In considering the length of the delay, the starting point is that the purpose of the time limit is to ensure that complainants pursue their human rights remedies with some diligence, and that it is in the public interest for them to identify appropriate respondents to a complaint within the time limit: Buchanan at para. 33. One reason for this is to allow respondents “the comfort of performing their activities without the possibility of late-filed complaints”: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12. This is so that respondents can take remedial steps if appropriate, and to protect respondents from having to address dated complaints: School District v. Child (Litigation guardian of) , 2018 BCCA 136 at para. 79; Kamloops (City) v. Spina, 2021 BCSC 723 at para. 80.
[44] 3253 Production says that the jurisprudence establishes that a delay measured in months is excessive and militates strongly against the public interest: Lewis v. British Columbia (Ministry of Public Safety & Solicitor General) , 2011 BCHRT 352 at para. 102. 3253 Production notes that the Tribunal has previously declined to exercise its discretion to accept a complaint late filed by two months (Lewis); three days (Andres v. Hiway Refrigeration, 2009 BCHRT 135); and one month (Kang v. UBC, 2015 BCHRT 10). These constitute much shorter delays than in this case. 3253 Production notes that Mr. Francis makes no allegation of a continuing contravention under s. 22(2) of the Code. 3253 Production says the substantial delay in this case weighs strongly against the acceptance of the complaint against it.
[45] I agree that the delay in bringing this application is substantial. The alleged events involving 3253 Production underlying this complaint occurred between October 2020 and approximately January 2021, when the Head Chef left his employment and Mr. Francis alleges 3253 Production’s investigation ended. The timeline prescribed in the Code required that he file his complaint by January 2022. Mr. Francis filed his application to add 3253 Production as a respondent on November 15, 2023, approximately 22 months outside the time limit.
[46] Mr. Francis says he was not able to afford legal advice when he initially filed his complaint. He does not say whether he sought out pro bono legal support at that time. He says that he sought out legal assistance regarding this complaint in October 2023, when he received Teamster’s response to his complaint. He says he had not reviewed his complaint for some time up to that point, as his attention was focused on employment and recovery from the events that led to an end of his career as a chef in the film industry. He says the events had an “emotional toll” on him.
[47] 3253 Production says that the Tribunal has consistently held that ignorance of the Code, or of the time required to become aware of one’s rights, is not acceptable as a reason on its own for a delay in filing a complaint: Martin-Clements v. British Columbia (Ministry of Justice) , 2015 BCHRT 43 at para. 15; Rashead v. Vereschahgin, 2006 BCHRT 74 at para. 12; Ferrier v. British Columbia Automobile Assn., 2009 BCHRT 412 at para. 31. 3253 Production says a vast number of complainants are self-represented and such does not provide a basis to receive exemption from the application of the Code.
[48] I agree that the cases cited by 3253 Production are applicable to this case. It appears that a significant impetus for obtaining legal advice and bringing this application was receiving Teamsters’ response to this complaint, at which time Mr. Francis felt compelled to retain legal counsel. This position is synonymous with a claim that he was previously ignorant of his rights under the Code to file against his employer and cannot be accepted. Mr. Francis does not explain why he was able to name 3253 Production as a respondent in his Labour Relations Board complaint, which was filed around the same time, but not in the current complaint. He also does not explain what changed in his finances to allow him to hire a lawyer in October 2023. While Mr. Francis further cites the emotional impacts of the disruption to his career, he does not explain or provide evidence to support how his emotional state impacted his ability to name 3253 Production as a respondent in a timely manner.
[49] Finally, Mr. Francis says it is in the public interest to allow his application because his complaint is a matter of general concern for the film industry and other industries where union control over work sites blur the line as to who has employer powers and who is responsible for preventing and redressing discrimination in the employment context. Mr. Francis further says that this case represents an example of employer inaction, indifference, and complicity that effectively fails to deal with allegations of discrimination in-house as a matter of an employer’s social responsibility to adhere to the Codeand to support the principles of the Code it its workplace.
[50] 3253 Production disagrees and says there is nothing unique, novel or particularly unusual about Mr. Francis’s allegations that his employment was adversely impacted because of his race and that he experienced harassment in his workplace. 3253 Production says these issues have been thoroughly canvassed in other complaints and the jurisprudence in this regard is well-established.
[51] Although I accept that race-based complaints in employment settings are not unique, Mr. Francis’s complaint engages the specific context of anti-Black racism in the unionized film industry. This is not an area that has received significant attention by the Tribunal. In Umolo v. Shoppers Drug Mart, 2021 BCHRT 166 at para. 29, the Tribunal acknowledged that anti-Black racism may share themes with other forms of racism but is distinct and should be assessed within its own context. In that case, as well as in Salad v. Sprott Shaw College and another , 2023 BCHRT 82 at para. 34, the Tribunal considered the allegations of anti-Black racism to be a factor weighing in the public interest of accepting the late-filed complaint.
[52] I agree with this reasoning. However, I am satisfied that the unique context of this complaint, namely the work environment in which the union allegedly plays an employer-like function, can be fully canvassed in the current complaint against Teamsters alone.
[53] In these circumstances, I find it is not in the public interest to accept the late filed complaint.
V CONCLUSION
[54] For these reasons, 3253 Production will not be added as a respondent to this complaint, and Mr. Francis’s application is denied.
Theressa Etmanski
Tribunal Member