Gerezghez v. Hermann’s Jazz Club, 2024 BCHRT 250
Date Issued: August 27, 2024
File: CS-009823Indexed as: Gerezghez v. Hermann’s Jazz Club, 2024 BCHRT 250
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:
Abel Gerezghez
COMPLAINANT
AND:
Hermann’s Jazz Club
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Abel Gerezghez
On behalf of the Respondent: Clay Barber
I INTRODUCTION
[1] On June 20, 2023, Abel Gerezghez filed a complaint of discrimination in employment based on race, colour, ancestry, place of origin, Indigenous identity, gender identity or expression and sex contrary to s. 13 of the Human Rights Code[Code], against Hermann’s Jazz Club [the Employer].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the Employer. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I find that it is in the public interest to accept the late filed complaint for filing.
II BACKGROUND TO COMPLAINT
[4] Mr. Gerezghez identifies as a Black Indigenous African from the Ethiopia / Sudan region. He also reports having a brain injury in the past.
[5] In December 2021, Mr. Gerezghez worked in the Employer’s club. He reports being the only Black person working in the establishment.
[6] During the month of December 2021, Mr. Gerezghez alleges the following mistreatment by the Employer:
· Accused of smoking cannabis at work for reasons related to racial stereotyping, even though it was known he did not consume drugs or alcohol
· Forced to perform degrading tasks that other non-Black employees were not asked to do
· Spoken to aggressively and with raised voices by management, while they only spoke cheerfully to non-Black staff
· Laughed at by manager when he reported patrons groped him on two occasions. Manager uttered a racial slur about him to one of the tables in response
- Exposed to derogatory racist slang words in the workplace
- Only employee not paid during his time working for the employer
· Employment terminated on December 17, 2021, after raising issues of discrimination in the workplace and asking to speak with someone in human resources
III ANALYSIS AND DECISION
[7] 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.
[8] 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: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit
[9] The complaint was filed on June 20, 2023. 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 June 20, 2022.
[10] The latest allegations of discrimination in this case occurred in December 2021. As such, 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: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[11] 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.
[12] I have first considered the length of delay in filing. As noted above, the latest allegations of discrimination in this case occurred on December 17, 2021. The complaint was, therefore, approximately six months late filed, which is significant:Benedict v. Rutland Dental Centre and others, 2008 BCHRT 39 at para. 19.
[13] Mr. Gerezghez’s reasons for his delay focuses on his mental health and prior brain injury. He submits that the trauma suffered while working for the employer resulted in depression, which required him to get counselling to recover. He reports focusing on healing instead of initiating a complaint. Mr. Gerezghez further submits that his brain injury causes exhaustion and makes it difficult to for him to focus on tasks. He alleges that his combined depression and brain injury symptoms left him with no mental energy and capacity to file his complaint earlier .
[14] The Employer submits that while it did not feel qualified to assess the level of Mr. Gerezghez’s disability, a case manager at the Victoria Brain Injury Society confirmed that Mr. Gerezghez was accessing services there at the time of the alleged discrimination and afterwards. As such, the Employer argues Mr. Gerezghez had resources available to him at the relevant time to file a complaint with the Tribunal.
[15] 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.
[16] I accept that Mr. Gerezghez’s evidence that he has a brain injury and suffered from depression during the timeframe for filing the complaint. In this case, there is no reason to doubt his evidence that the combination of these two conditions left him without the mental capacity or energy to file a complaint while he focused on healing through counselling. In reaching this conclusion, I appreciate that Mr. Gerezghez likely had access to advocacy resources, however, in the circumstances of this case it does not automatically follow that he could have contacted a help agency to initiate the complaint process on his own behalf. In my view, Mr. Gerezghez’s mental disabilities precluded him from filing during the relevant timeframe sufficiently to attract the public interest in allowing his complaint to proceed late filed.
[17] 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.
[18] Mr. Gerezghez is seeking justice to address racial discrimination and the racial profiling of Black people. He believes there is a public interest in pushing for equity in the workplace. Mr. Gerezghez ultimately wants to hold the Employer accountable to ensure that its work environment is in line with its policies.
[19] The Employer submits that there is no public interest in allowing Mr. Gerezghez’s complaint to continue late filed as he could have pursued less arduous processes to seek redress at the Employment Standards Branch or WorkSafeBC. The Employer denies discrimination in this case. It reports having a broad spectrum of diverse employees.
[20] While I accept that the Tribunal frequently addresses allegations of discrimination in employment, including allegations of differential treatment and harassment, Mr. Gerezghez’s complaint also engages the specific context of anti-Black racism in the workplace, which has not been commonly dealt with at the Tribunal. I appreciate that the Tribunal has issued occasional decisions after a hearing on this subject, but their existence does make this type of case common: Young Worker v. Heirloom and another, 2023 BCHRT 137;Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136;Balikama v. Khaira Enterprises Ltd., 2014 BCHRT 107.
[21] 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, the Tribunal considered the allegations of anti-Black racism to be a factor weighing in the public interest of accepting the late-filed complaint. I agree with the reasoning and find it applies to this case. I accept that this factor weighs in favour of finding it is in the public interest to accept the late filed complaint.
[22] Mr. Gerezghez’s complaint is significantly late filed. However, after reviewing his explanation in filing related to mental disability, I find it weighs in favour of the public interest in accepting the complaint for late filing. Mr. Gerezghez’s depression symptoms combined with his brain injury precluded him from filing until counselling improved his symptoms. Finally, public interest attracts to this case proceeding as it involves allegations of anti-Black racism. It is now necessary to address the issue of whether any substantial prejudice would result.
C. Substantial Prejudice
[23] Mr. Gerezghez submits that he has retained evidence of the alleged discriminatory treatment while working for the Employer. He also states that he is in contact with witnesses who observed and acknowledged his mistreatment. The Employer submits that it would be prejudiced because some staff who are likely witnesses in this matter are no longer in its employ.
[24] In my view, no substantial prejudice would result to the Employer in this case because of the delay. While the Employer has raised prejudice concerns related to former employees, it has not stated that they cannot be contacted. I do not doubt marshalling this evidence will be more challenging where potential witnesses are no longer associated with the Employer, but in my view having to put in more effort does not reach the level of substantial prejudice in this case. As such, I have determined Mr. Gerezghez has satisfied the burden of establishing both elements under s. 22(3) of the Codeand I cannot conclude that the Employer would suffer substantial prejudice.
IV Conclusion
[25] For these reasons, the complaint is accepted for filing.
Steven Adamson
Tribunal Member