Ash v. International Longshoreman and Warehouse Union, Local 502, 2024 BCHRT 255
Date Issued: September 5, 2024
File: CS-001098Indexed as: Ash v. International Longshoreman and Warehouse Union, Local 502,
2024 BCHRT 255
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:
Montgomery Ash
COMPLAINANT
AND:
International Longshoreman and Warehouse Union, Local 502
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Ib S. Petersen
Counsel for the Respondent: Rye Dutton
I INTRODUCTION
[1] On September 3, 2019, Montgomery Ash filed a complaint alleging the International Longshoreman and Warehouse Union – Local 502 [the Union] discriminated in Employment and Unions and Associations, contrary to sections 13 and 14 of the Human Rights Code [Code].
[2] On October 23, 2020, Counsel for Mr. Ash provided a detailed complaint amendment in response to the Tribunal’s further questions regarding the nature of his complaint, which included additional time limit submissions.
[3] On January 26, 2024, counsel for the Union provided a detailed submission in response to Mr. Ash’s submissions.
[4] On June 19, 2024, the Tribunal informed the parties that the timeliness application was in queue for decision after confirming counsel for Mr. Ash was provided a copy of the January 26, 2024, submission and to date had not filed a reply with the Tribunal. I am similarly satisfied that Mr. Ash had an opportunity to reply to the Union’s response and can proceed with making this decision.
[5] The Union submits the Tribunal does not have jurisdiction over this matter without providing further details. If the Union sought to raise a constitutional jurisdiction issue, it was necessary for it to provide notice to the Attorneys General: s. 8 of British Columbia’s Constitutional Questions Act ; s. 32(j) of the Code and s. 46 of the Administrative Tribunals Act . This did not occur and, therefore, the issue will not be considered.
[6] The issue before me is whether to accept the Complaint for filing against the Union as a continuing contravention of the Code s. 22(2). If not, 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.
[7] For the reasons that follow, I find that the Complaint is not a continuing contravention of the Code, and it is not in the public interest to accept the late filed complaint allegations for filing.
II BACKGROUND
[8] The existence of arguable contraventions of the Code in this case requires a review of Mr. Ash’s allegations in some detail below.
[9] In mid 2015, Mr. Ash was registered as a casual worker with the Union. He did not become a member of the Union. After attending a training program, Mr. Ash says that he obtained work off the Union’s trade board with Tri-Line, a company that provided contracting services to other companies operating as the BC Maritime Employers Association [BCMEA].
[10] In October 2016, Mr. Ash alleges that he went off work on medical leave due to Post-Traumatic Stress Disorder symptoms. He is not alleging any discrimination based on mental disability in this complaint.
[11] From late October 2016 to February 2018, Mr. Ash reports being incarcerated for a conviction related to domestic violence.
[12] The Union’s rules related to maintaining casual workers on the trade board Mr. Ash was posted on required workers to maintain a certain number of shifts and hours worked over the previous six-month period to maintain their status on the board.
[13] In January 2017, Mr. Ash alleges the Union’s secretary treasurer refused to accept records of his hours worked prior to being incarcerated when they were hand delivered to the Union hall by his partner. He alleges the secretary treasurer told his partner that “I know he’s in jail, he can come here himself”.
[14] On July 15, 2017, Mr. Ash alleges the Union deactivated his casual status on the trade board as has he had not met the minimum shifts and hours worked during the previous six-month period. Mr. Ash alleges the Union’s removal of him from the trade board while he was unable to work for reasons related to being incarcerated for an offence unrelated to his membership or intended membership was discriminatory. In particular, he alleges the rule was discriminatory on its face in that it exempted injured or disabled casuals, but not people who had been incarcerated for reasons unrelated to their employment.
[15] Some time between February and May 2018, Mr. Ash alleges the Union’s secretary treasurer told a colleague that the Union would not be “defending such a piece of shit” and asked them “why are you helping someone who tried to kill their girlfriend”, in response to being asked about him being reinstated on the trade board.
[16] On May 1, 2018, Mr. Ash reports attending a meeting of the Union’s Grievance and Credentials Committee [the Committee ] to plead his case for reinstatement on the trade board. He alleges the Committee displayed “nonverbal discriminatory behaviours” related to his previous incarceration and proceeded to uphold its decision not to reinstate him on the trade board. Mr. Ash alleges the Committee did not provide any reasons for its decision or furnish him with a copy of the rules related to dispatch from the trade board.
[17] On January 21, 2019, Mr. Ash alleges speaking with the BCMEA about his employment as a casual. He says they referred him to a business representative with the Union to inquire about getting himself back on the trade board. Mr. Ash alleges that he called the business representative and left a message without it ever being returned.
[18] On February 16, 2020, Mr. Ash alleges calling the Union’s then current secretary treasurer to request a copy of his employee file. He alleges the secretary treasurer refused to respond to his request.
[19] On February 25, 2020, Mr. Ash alleges speaking to the Union’s then secretary treasurer again about his situation, including his intention to make a labour relations complaint, and being told to “do what you need to do”. That same day he alleges speaking to another Union executive and being told “as far at the Local is concerned it was dealt with.”.
[20] On March 2, 2020, Mr. Ash alleges that he sent an email to Union officials requesting a copy of his personnel file without receiving any response.
[21] On July 10, 2020, Mr. Ash’s counsel wrote to the Union demanding it disclose any personal information it had control over. In a July 20, 2020, letter in response, the Union allegedly informed counsel it would not comply, preferring instead to deal with members and casuals directly. The Union also allegedly justified its delays in responding to Mr. Ash’s previous requests for reasons related to the pandemic.
[22] Mr. Ash noted that since he was working out of town, he had not yet been able to access the information and documents in person, as had been offered by the Union.
III ANALYSIS AND DECISION
[23] 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.
[24] 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 and Continuing Contravention
[25] The Complaint was filed on September 3, 2019. 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 September 3, 2018.
[26] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City),2015 BCCA 57 at para. 23; School District at para. 50.
[27] Mr. Ash submits the Union’s subsequent ignoring of his requests for access to its information about his status on the trade board, including minutes of the Committee meeting, and its refusal to provide reasons for its decision to remove him from the board, was a continuing “cover-up” to conceal its conduct on numerous occasions. In his view, these instances were not the continuing consequences of prior actions, but distinguishable refusals to provide information that were separate acts of contravention. Mr. Ash argues the Union’s ill-will towards him in refusing to provide him with information about the decision and its subsequent refusal to dispatch or refer him for employment on numerous separate occasions were contraventions of theCodebecause this negative treatment was related to his prior criminal conviction.
[28] The Union argues the various timely acts related to accessing information and assistance were not arguable contraventions of the Code since they would not establish discrimination if proven. In the Union’s view, Mr. Ash has not disclosed a chain of separate acts of discrimination of the same character, but rather one alleged violation of the Code with continuing consequences.
[29] In this case I am not satisfied that Mr. Ash has set out any timely allegations of discrimination capable of grounding a continuing contravention of the Code. While accepting that July 2017 application of the Union’s rule removing him from the trade board, along with the May 1, 2018, decision of the Committee not to reactivate his status after hearing submissions from him, are both arguable contraventions, I do not find the later allegations are arguable contraventions. In my view, Mr. Ash’s later attempts to seek information about how the Union rendered its decision to remove him from the trade board, and its failure to refer him out for work as he was no longer on the trade board, are more appropriately categorized as consequences of the prior alleged discrimination, rather than new allegations of discrimination. Even if the Union’s failure to engage with Mr. Ash after the Committee meeting was a cover-up for its previous discriminatory decisions, these instances were the consequences of the prior discrimination and not further arguable contraventions. In addition, the Union’s ongoing failure to refer Mr. Ash out for work was a consequence of its decision to take him off the trade board that does not create further separate allegations of discrimination.
[30] Having found no timely allegations of discrimination capable of forming a continuing contravention of the Code, it is necessary to determine whether the Tribunal should exercise its discretion to accept the late filed July 2017 and May 2018 allegations 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
[31] Whether it is in the public interest to accept late-filed allegations from July 2017 and May 2018 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.
[32] I have first considered the length of delay in filing. As noted above, the latest out of time allegation in this case occurred on May 1, 2018, and the earliest was July 15, 2017. As such, the late allegations range from approximately four months late to over 13 months late, which is significant, but not inordinate if other factors militate in favour of acceptance: Attew v. Ministry of Public Safety and Solicitor General (Corrections Branch) and another , 2021 BCHRT 170 at para. 19;Levett v. The Breakwater Café and Bistro and another, 2016 BCHRT 181 at para. 10; Dyck v. Fraser Heights Funeral Home and another , 2016 BCHRT 168 at para. 12.
[33] Mr. Ash provided several reasons for his delay in filing. First, he describes focusing on resolving the matter through a series of inquires with the Union, as noted above, without informing himself about the option to file a complaint with the Tribunal. While appreciating that Mr. Ash may have decided to focus his attention on having the Union reconsider its decision to take him off the trading board, the Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code, on its own, to relieve against the time limit: Sones v. District of Squamish, 2016 BCHRT 99 at para. 44 and Devitt and Hargrove obo others v. School District No. 43 and another, 2011 BCHRT 218 at paras. 20-21. In this case, Mr. Ash demonstrated that he could retain counsel for pursuing this complaint and he has not provided any compelling reason for him thinking he needed to wait before filing a complaint with the Tribunal. While Mr. Ash references the interplay of federal and provincial jurisdictions in his situation, he has not stated how this contributed in any way to his delay in filing.
[34] Second, Mr. Ash candidly admits that his complaint was late because he was unaware of his ability to file a complaint with the Tribunal. Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31. In this case, Mr. Ash has not provided any further explanation as to why his lack of awareness attracts the public interest in allowing the late-filed complaint to proceed. In fact, Mr. Ash demonstrated an ability to retain counsel that would have provided him with the necessary information if he had reached out during the timeframe for filing. As such, I do not find Mr. Ash’s ignorance of the Code attracts any public interest in allowing it to proceed.
[35] 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.
[36] Mr. Ash argues this case raises important issues about a union’s duty to accommodate individuals with an unrelated criminal conviction. He believes his complaint should be allowed to proceed because such complaints infrequently come before the Tribunal.
[37] The allegation of discrimination based on prior criminal conviction in an employment and unions setting is somewhat unique, novel and unusual in the sense that the Tribunal receives very few complaints alleging discrimination based on criminal conviction. With so few complaints on this ground, the barriers faced by people with criminal convictions in obtaining employment, or in this case referrals for employment by a union, is a matter of public interest that the Tribunal rarely gets to comment on. However, the jurisprudence in employment has been established: Purewall v. ICBC, 2011 BCHRT 43; Clement v. Jackson and Abdulla,2006 BCHRT 411; and Dunphy v. B.C. (Min. of Public Safety and Sol. Gen.) and Saville (No. 2), 2005 BCHRT 3.
[38] While appreciating Mr. Ash’s desire to raise the issue of a union’s duty to accommodate individuals with an unrelated prior conviction, I am not persuaded by the argument that the nature of his human rights complaint is strong enough to tip the balance in favour of accepting the Complaint in the public interest. As noted above, the Tribunal has addressed complaints of prior criminal conviction under s. 13 of the Code. While appreciating that this complaint could involve both ss. 13 and 14 of the Code, it does not appear that the analysis for a case involving employment referrals or dispatches by a union under s. 14 of the Code would be significantly different from those solely dealing with s. 13 only. In this case, Mr. Ash has provided no additional information, and there is nothing in the materials to suggest, that there is anything particularly unique, novel, or unusual about this complaint that has not already been addressed in other complaints before the Tribunal or that will fill a gap in the Tribunal’s jurisprudence.
[39] Given the significant delay in question, Mr. Ash’s reasons for delay not attracting significant public interest in allowing the late filed complaint to proceed, and the lack of uniqueness of the Complaint for the purposes of this decision, I have decided it is not in the public interest to move it forward in the Tribunal’s process. Having found the public interest is not attracted in this case, I need not address the issue of whether substantial prejudice would result.
IV CONCLUSION
[40] For these reasons, the Complaint is not accepted for filing.
Steven Adamson
Tribunal Member