Atwijiyor v. Coast Foundation Society, 2024 BCHRT 252
Date Issued: August 28, 2024
File: CS-009534Indexed as: Atwijiyor v. Coast Foundation Society, 2024 BCHRT 252
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:
Helen Atwijiyor
COMPLAINANT
AND:
Coast Foundation Society
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: Helen Atwijiyor
Counsel for the Respondent: Taryn Mackie
I INTRODUCTION
[1] On May 11, 2023, Helen Atwijiyor filed a complaint alleging the Coast Foundation Society [the Society ] discriminated in employment, contrary to s. 13 of the Human Rights Code [Code].
[2] On January 2, 2024, the Tribunal notified the parties of the complaint being late filed against an individual respondent. This person was a client in the Society home where Ms. Atwijiyor worked [the Client] and was involved in a clash with her on February 5, 2022. The Tribunal’s notice also informed the parties that the Tribunal had accepted the complaint against the Society as a timely continuing contravention, but informed the Society that it could file a submission arguing otherwise.
[3] The Society’s timeliness submissions focus on disputing the acceptance of any allegations of discrimination prior to February 5, 2022, capable of forming part of a continuing contravention of the Code .
[4] In passing, I note that on May 1, 2024, Ms. Atwijiyor withdrew her complaint against the individual respondent for reasons related to not being able to find a proper address for delivery.
[5] For the reasons that follow, I confirm that the Complaint continues for timely allegations from June 2022 to May 2023. However, the Complaint does not contain any arguable contraventions of the Code for allegations occurring prior to February 5, 2022. As such, it is not a continuing contravention of the Code.
II BACKGROUND
[6] Ms. Atwijiyor identifies as Black. In 2019 she began working as a community mental health worker stationed in one of the Society’s numerous community homes located throughout Metro Vancouver. Ms. Atwijiyor reports being the only Black employee at the house where she worked.
[7] The existence of arguable contraventions of the Code in this case requires a review of Ms. Atwijiyor’s allegations in some detail below.
[8] Ms. Atwijiyor alleges that throughout her employment with the Society she was given the worst clients to cater to and the “shitty” tasks to perform. She describes her situation as feeling like she was in a state of “Black slavery” where no consideration was given to her as a Black person [the Black slavery allegation].
[9] In late 2021, Ms. Atwijiyor alleges she was discriminated against by her manager without providing any details of this incident [the Manager allegation].
[10] Some time prior to February 2022, Ms. Atwijiyor alleges discrimination in relation to interactions about a grievance with the Society’s HR advisor and senior house manager without providing any further details of these interactions [the Grievance allegation ].
[11] The Black slavery allegation, Manager allegation and Grievance allegation all occurred prior to the one-year timeline for filing the complaint [together the Untimely allegations].
[12] On February 5, 2022, Ms. Atwijiyor alleges the Client in the house where she worked attacked her after she asked her, along with other clients present, whether she had written an abusive note to Ms. Atwijiyor, containing swear words and racial slurs. Ms. Atwijiyor alleges the incident with the Client resulted in significant upper extremities injuries and time off work on a WorkSafeBC claim form early February until mid June 2022.
[13] In mid June 2022, Ms. Atwijiyor alleges the Society failed to properly accommodate her ongoing disability by placing her in another home to work which housed many more clients. She says this resulted in her having to do twice the volume of work than in her previous location. Specifically, Ms. Atwijiyor alleges the Society failed to accommodate her ongoing disability by forcing her to lift more than her restrictions permitted and requiring her to perform overly repetitive tasks while preparing meals for more clients, typing up paperwork and cleaning the kitchen. She reports laying off work again due to her upper extremities disabilities as of the end of July 2022.
[14] In June 2022, Ms. Atwijiyor further alleges that the Society decided not to believe she was the victim of the client’s aggression on February 5, 2022. Following its investigation, she alleges the Society chose to accept the client’s version of events over hers for reasons related to her race and colour. Ms. Atwijiyor alleges this resulted in her being unfairly disciplined.
[15] Ms. Atwijiyor alleges being off work due to her upper extremities disabilities from the end of July 2002 until May 2023.
[16] On May 4, 2023, Ms. Atwijiyor alleges attempting a further return-to-work. She reports this attempt failed by the end of May 2023 for reasons related to being forced to exceed her lifting restrictions, and because she sustained other injuries to her back and by burning her arm.
[17] Ms. Atwijiyor does not appear to have returned to work at the Society after May 2023. However, from the information on file it appears that she continues to be a Society employee.
III ANALYSIS AND DECISION
[18] 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.
[19] 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.
[20] The Complaint was filed on May 11, 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 May 11, 2022.
[21] As noted above, the Tribunal previously accepted the June 2022 to May 2023 timely allegations of discrimination against the Society for filing. From my review of the complaint information and the parties’ submissions, I see no reason to disturb the Tribunal’s prior decision on this aspect of the January 2, 2024, notice of complaint proceeding decision. I am satisfied that events from mid June 2022 until May 2023 contain allegations of discrimination: Moore v. British Columbia (Education) [Moore], 2012 SCC 61 at para 33. Ms. Atwijiyor’s has shown that, if proven, she can establish that she is Black and has physical disabilities, experienced an adverse impact with respect to her employment with the Society; and that her race, colour and physical disability were factors in the alleged adverse impacts during this timeframe.
[22] However, I have decided to revisit the Tribunal’s decision with respect to accepting Ms. Atwijiyor’s Untimely allegations against the Society prior to the incident on February 5, 2022, as part of a continuing contravention of the Code.
[23] As set out above, the Untimely allegations occurred prior to Ms. Atwijiyor’s altercation with the client in February 2022. While these allegations occurred beyond the one-year time limit for filing, they may be found to be filed in time if they form part of a continuing contravention of the Codes. 22(2). I note each allegation must be capable of standing on its own as a separate allegation of discrimination. After reviewing the information and submissions, I am not satisfied that each of these three items contain allegations of discrimination. Ms. Atwijiyor’s has not shown that, if proven, she can establish that she is Black, experienced an adverse impact with respect to her employment with the Society; and that her race and colour was a factor in the alleged adverse impacts in all three instances.
[24] In reaching this conclusion, I agree with the Society that Ms. Atwijiyor has not provided sufficient particulars for the Black slavery, Manager and Grievance allegations to be capable of forming arguable contraventions of the Code.
[25] First, as concerns the Black slavery allegation, Ms. Atwijiyor is alleging a complaint spanning multiple years from 2019 until 2022 without providing any specific information as to when these events occurred, what was said, and who was involved. As such, I find these events too vague to be accepted for filing. To allow that would make it overly difficult for the Society to know the case that is being made against them in this complaint. In reaching this conclusion, I am satisfied that Ms. Atwijiyor had an opportunity to provide the necessary complaint details as the Society raised this in its submission and she responded with more information in her reply. Unfortunately, Ms. Atwijiyor’s further information was not enough to ground an arguable contravention.
[26] Second, as concerns the Manager allegation, Ms. Atwijiyor identified discrimination on the part of her manager in late 2021 without providing any details of what the harm was and how her race and colour was a factor in the alleged adverse impact. Here again, I am similarly satisfied that Ms. Atwijiyor had an opportunity to provide the necessary complaint details as the Society raised this in its submission and she responded with more information in her reply that could not ground an arguable contravention.
[27] Third, as concerns the Grievance allegation, while Ms. Atwijiyor identifies as specific exchange with employees of the Society about a grievance, she has not set out what the harm was and how her race and colour was a factor in the alleged adverse impact. Once again, I am satisfied Ms. Atwijiyor had an opportunity to provide more details concerning this allegation in her reply, but her further information was not sufficient to ground an arguable contravention.
[28] Not having found any late-filed allegations capable of grounding allegations of discrimination under the Code, it is unnecessary for me to embark further into an inquiry as to whether any out of time allegations are capable for forming a continuing contravention of the Code when viewed together with the timely allegations that are proceeding in this case.
IV CONCLUSION
[29] For these reasons, I have determined that there are no late-filed allegations in the Complaint against the Society capable of proceeding. The Complaint proceeds against the Society for allegations between June 2022 and May 2023 only.
Steven Adamson
Tribunal Member