Pimentel Cabral v. BC Ministry of Education (Teacher Regulation Branch), 2024 BCHRT 227
Date Issued: August 2, 2024
File: CS-009202Indexed as: Pimentel Cabral v. BC Ministry of Education (Teacher Regulation Branch), 2024 BCHRT 227
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:
Thais Pimentel Cabral
COMPLAINANT
AND:
His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Education (Teacher Regulation Branch)
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: Thais Pimentel Cabral
Counsel for the Respondent: Alexandra MacCarthy
I Introduction
[1] On March 24, 2023, Thais Pimentel Cabral filed a complaint based on place of origin contrary to s. 8 of the Human Rights Code [Code], against His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Education (Teacher Regulation Branch) [the TRB].
[2] While Ms.Pimentel Cabral identified Code s. 14, unions and associations, as the appropriate area of discrimination for consideration, my review of her complaint indicates that it is properly brought under s. 8, services.
[3] 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.
[4] For the reasons that follow, it is not in the public interest to allow the Complaint to proceed late filed: s. 22(3).
II Background
[5] Ms. Pimentel Cabral is from Brazil. When she immigrated to Canada, she was already a qualified and experienced teacher.
[6] In early 2016, the TRB informed Ms. Pimentel Cabral that she needed to pass a specific English language proficiency test [the Test], pass various post-secondary courses, and pass a teacher education program or teaching updating program, to qualify as a teacher in Canada.
[7] At that time, Ms. Pimentel Cabral states she was unable to achieve the necessary written language score to pass the Test. As such, she focused on taking the additional courses and the teacher education program. She notes that she took the full education program as she could not obtain a spot in the updating program.
[8] In early December 2019, Ms. Pimentel Cabral states she wrote the Test, but failed by half a point in the writing assessment section. She reports that her application to have the test re-marked was unsuccessful.
[9] In January 2020, Ms. Pimentel Cabral hired a private tutor to assist with understanding how the writing section of the Test was scored.
[10] On January 8, 2020, Ms. Pimentel Cabral took the Test again and failed it a second time for missing half a point in the writing assessment section. She applied to have this Test re-marked while at the same time scheduling to write the Test for a third time on February 22, 2020.
[11] On February 22, 2020, Ms. Pimentel Cabral reports learning that she had passed the second Test after it was re-marked at her request.
[12] On February 27, 2020, Ms. Pimentel Cabral alleges she informed the TRB that she had passed the Test and submitted the necessary transcripts for her coursework and teacher education program.
[13] On March 12, 2020, Ms. Pimentel Cabral states the TRB informed her that she would now have to complete a criminal record check now that she has satisfied the English proficiency and coursework requirements.
[14] On April 3, 2020, Ms. Pimentel Cabral reports receiving her certificate of qualification from the TRB.
[15] On July 25, 2022, Ms.Pimentel Cabral states she learned the Test requirement was dropped from the teacher certification program as applicants who completed an accredited teacher education program in English were considered to be proficient in the language. In her view, the unnecessary Test requirement she was subjected to because of her place of origin delayed her being hired for a teaching job. She alleges this negatively impacted her mental health and finances.
III ANALYSIS AND DECISION
[16] 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.
[17] 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.
[18] The issue in this decision is whether it is in the public interest to allow Ms. Pimentel Cabral’s late-filed allegations to proceed: s. 22(3).
A. Time Limit
[19] The complaint was filed on March 24, 2023. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination would have to have occurred on or after March 24, 2022.
[20] Ms. Pimentel Cabral alleges that the allegations of discrimination involving the TRB’s Test requirement occurred from 2016 until March 2020. As such, her 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: Code, s. 22(3).
B. Public Interest
[21] 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.
[22] I have first considered the length of delay in filing. The allegations in this case occurred up until March 2020. As such, the complaint allegations are at least two years late, which is excessive, and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another [Naziel-Wilson], 2014 BCHRT 170, at para. 13; Mziteat para. 59.
[23] Ms.Pimentel Cabral provided several reasons for her delay in filing. First, she reports just learning about the changes to the TRB’s language proficiency requirements that occurred in July 2022 at the time she filed her complaint in early 2023. Ms. Pimentel Cabral submits that learning the Test requirement was dropped for those completing the teacher education program provided her with the necessary proof that it was wrong for the TRB to make her pass the Test because she had passed the necessary coursework to qualify as a teacher in Canada.
[24] In A.M. v. British Columbia Human Rights Tribunal, 2017 BCSC 89, at paras. 44-70, the court dealt with a review of the Tribunal’s late filing decision where the complaint was filed after the complainant learned through testimony at a custody hearing that the respondent had concerns about his ability to parent because he was from Saudi Arabia. In deciding the Tribunal’s decision to not accept the late-filed complaint for reasons that were in the public interest was patently unreasonable, the court found that the complainant learned for the first time during the custody hearing after the time limit for filing had expired that there was cogent evidence that the respondent Ministry’s actions were based on concerns about his place of origin, which was an immutable characteristic of the complainant. In that case, fairness dictated that the complaint be accepted for filing where the complainant only learned of an evidentiary basis for a complaint at the custody hearing. Before then, the court characterized him as being unaware that he had a case.
[25] After reviewing Ms.Pimentel Cabral’s complaint form and time limits submission, in my view she is not claiming that she did not have information supporting her belief that the Test requirement was discriminatory prior to learning about the TRB dropping it as a requirement for someone in her situation. Rather, it appears that Ms. Pimentel Cabral was emboldened to file her complaint once she learned the TRB dropped the Test requirement for teachers who successfully completed the coursework requirement in English. In this case, Ms. Pimentel Cabral was aware of the Test requirement and likely felt it was wrong to impose it when she had already completed the necessary coursework. In my view, this is not a situation where Ms. Pimentel Cabral did not know she had a case, but one where her case may have been strengthened when she learned that the TRB dropped the Test requirement. In these circumstances, the public interest does not attract where Ms. Pimentel Cabral received information possibly strengthening her case.
[26] Second, Ms. Pimentel Cabral reports being severely impacted emotionally during the timeframe for filing. At the relevant time, she alleges that she was grieving the loss of one of her parents, along with other family members, from COVID-19 during the pandemic. Further, Ms. Pimentel Cabral reports starting on-call teaching positions in two school districts in February 2020 that caused instability in her working life. 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. Without doubting the existence of Ms. Pimentel Cabral’s grief from the loss of loved ones and stress related to working on-call in two school districts, I have determined that she has not provided any significant information indicating a level of associated disability from filing a complaint related to them. In this case, Ms. Pimentel Cabral has not provided any significant evidence indicating her grief and work stress precluded her from filing her complaint. In my view, it can be implied that their effect was limited where she could seek and engage in employment as a teacher.
[27] 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 BCHRT 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.
[28] Ms. Pimentel Cabral is concerned about the TRB’s language proficiency test requirements preventing many internationally trained educators from certifying and working in BC during the period before the Test requirement changed in mid 2022. She believes the TRB, as a powerful government institution, should not be given a pass where it negatively impacted her and other newcomers similarly situated. While appreciating Ms. Pimentel Cabral 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 services based on place of origin, and the jurisprudence in this area is fairly settled: see Harun-ar-Rashid v. Ministry of Education (Teacher Regulation Branch) , 2021 BCHRT 75.
[29] In the end, I do not find this Complaint attracts the public interest in allowing it to proceed late filed. The Complaint was filed approximately two years late and Ms. Pimentel Cabral has not adequately explained 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
[30] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member