Mr. C v. Vancouver Police Board and others, 2024 BCHRT 265
Date Issued: September 18, 2024
File: CS-004542
Indexed as: Mr. C v. Vancouver Police Board and others, 2024 BCHRT 265
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:
Mr. C
COMPLAINANT
AND:
Vancouver Police Board and Michael Rothengatter and Nicholas Marmaras
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On behalf of the Complainant: Maanasa Rajaguru
Counsel for the Vancouver Police Board: David T. McKnight
Counsel for Michael Rothengatter and Nicholas Marmaras: Christine Joseph
I INTRODUCTION
[1] On July 22, 2021, Mr. C filed a complaint of discrimination in services based on mental and physical disability contrary to s. 8 of the Human Rights Code[Code], against the Vancouver Police Board [VPB] and two police officers, Michael Rothengatter and Nicholas Marmaras [together the Respondents ].
[2] The complaint was initially allowed to proceed in the normal course as the Tribunal failed to recognize the issue related to it being late filed.
[3] On February 6, 2024, the Tribunal decided the appropriate case path for the complaint was to refer the late filing issue back for a s. 22 of the Code decision as opposed to having it considered as part of a s. 27 application.
[4] The VPB applied to make further submissions in response to the new information contained in Mr. C’s reply submission. Given my decision in this matter it was unnecessary for me to consider the VPB’s further application.
[5] The issue before me with respect to timeliness is whether to accept the complaint against the Respondents. I make no findings regarding the merits of this complaint.
[6] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.
II ORDER LIMITING PUBLICATION
[7] In rendering this decision, it is necessary to discuss the Mr. C’s disabilities in detail as it relates to his ability to file the complaint in a timely manner. As such, I have decided to order a limitation on the publication of the name of Mr. C to protect his privacy regarding this sensitive information.
[8] In making this order, I recognize there is a strong public interest in the Tribunal maintaining open and public processes to promote the awareness of the Code, education about its application, and access to its processes. However, there are exceptions to an open process where strong grounds for limiting publication of personal information exist: A v. University and Dr. B and C and D and E, 2014 BCHRT 235 at para. 5. In this case, I am persuaded that public knowledge of the Mr. C’s name, when the decision must identify his various disabilities may have a negative effect on his livelihood and could possibly stigmatize him in the community where he lives. This is a compelling ground for limiting publication for the purposes of preliminary decisions on this complaint.
III BACKGROUND TO COMPLAINT
[9] Mr. C has type 1 diabetes and hemangiopericytoma (brain and nervous system cancer). He alleges the numerous drugs he takes for the cancer condition severely inhibits his mobility and negatively affects his blood sugar.
[10] On April 27, 2020, Mr. C reports that an ambulance was called to medically assist him because he was suffering from severe low blood sugar. He alleges the two VPB police officer respondents also arrived at the scene and used excessive force in apprehending him under s. 28 of the Mental Health Act. Mr. C alleges he was in a confused state due to the medical emergency but was not violent or threatening. He says the police nevertheless forced him to the ground, kneeling on his head, neck, back and hand. This caused bruising to Mr. C’s face and broken bones in his left hand.
[11] On August 14, 2020, Mr. C filed an online complaint form with the Office of the Police Complaint Commissioner [OPCC] regarding the incident with VPB officers. In his complaint to the OPCC, Mr. C alleges six or more VPB officers initially surrounded him outside his home prior to the ambulance arriving. He says that when he ran for the ambulance after it arrived, several officers tackled him to the ground in a rough manner. He described what then happened as follows:
They stepped on my hands, my head and neck and yelled and swore at me and broke my glasses. At that time out of fear I was trying to protect myself from being hit which didn’t’ really work as the plain clothed officers continued to punch, step and kneel on my back. It hurt a lot and I was put in cuffs so tight I had bruises for around a week with one of my wrists bent backwards. Once they determined I was safe to be no longer walked on they lifted me up from behind with the cuff chain.
[12] While he was pinned to the ground, Mr. C alleges the paramedics gave him glucagon or glucose. Within a few minutes of receiving this he felt normal again and was able to explain the situation to the VPB officers. Mr. C alleges the officers refused to believe that he had recovered and kept him in handcuffs that bruised his wrists until he was transported to hospital and placed in a secure room.
[13] Mr. C states that his OPCC complaint was completed at the time his human rights complaint was initiated in mid 2021. He does not describe the outcome of the OPCC complaint, however, a February 2021 report for his attending psychiatrist notes Mr. C’s dissatisfaction with the VPB’s response to the OPCC complaint during an assessment which is detailed below.
IV ANALYSIS AND DECISION
[14] 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.
[15] 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
[16] The complaint was filed on July 22, 2021. 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 July 22, 2020.
[17] The discrimination allegation in question occurred on April 27, 2020. 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
[18] 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.
[19] I have first considered the length of delay in filing. As noted above, the allegations of discrimination in this case occurred on April 27, 2020. As such, the complaint allegations were just under three months late filed, which is a somewhat significant delay, but may not be inordinate or beyond consideration, if other factors militate in favour of acceptance: Young v. Home Depot and others, 2018 BCHRT 68 at para. 42.
[20] Mr. C provided several reasons for his delay in filing. He submits that during the timeframe for filing and beyond he was suffering from reduced mental and physical capacity due to his terminal cancer and diabetes conditions. He further argues that his disabilities made him more vulnerable to infection during the pandemic and, therefore, more fearful of reaching out to access free legal support, which resulted in the three-month delay in filing. He claims the extent of his disabilities in impacting his activities of daily living and ability to work are not helpful in determining whether the public interest is attracted in this case.
[21] The Respondents argue Mr. C has not established a level of disability capable of attracting the public interest in allowing the complaint to proceed. With reference to various medical reports on file, they argue Mr. C’s usual capacities were not impacted by his cancer and diabetes such that he was precluded from filing his complaint in time. Rather, they argue that the medical evidence indicates Mr. C had a demonstrated ability to continue with activities of daily living and return to work. They argue his ability to file his OPCC complaint online four months after the alleged discrimination occurred indicates he could have similarly filed with the Tribunal.
[22] 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.
[23] Without doubting the existence of Mr. C’s cancer and diabetes conditions, and their combined effects on his level of functioning, I am not satisfied he was precluded from filing a complaint sufficient to attract the public interest in allowing it to proceed late filed. The relevant measure of disability at issue is whether the complainant is precluded from filing a complaint. In my view, evidence related to Mr. C’s ability to perform other activities as set out below is of assistance in deciding whether the public interest attaches to disability from filing a complaint with the Tribunal.
[24] The April 9, 2020, progress note from Mr. C’s attending physician at the BC Cancer Agency reports ongoing headache as his chief complaint. The doctor listed multiple drugs for pain management, including morphine. She recommended Mr. C create a daily schedule and routine and expose himself to news, including pandemic updates.
[25] In the May 21, 2020, progress note Mr. C’s Cancer Agency physician noted progress with his low blood sugar after discontinuing an anti-inflammatory medication. The note also referenced Mr. C’s continuing use of morphine and hydromorphone for managing his headache pain symptoms.
[26] In the June 24, 2020, progress note a Cancer Agency attending psychiatrist noted that Mr. C continued to feel excessively sedated and quite amotivated. Nevertheless, the psychiatrist reported that Mr. C was trying to find work that occupies his mind.
[27] In the July 16, 2020, progress note a Cancer Agency physician noted from a telephone assessment that Mr. C had a history of chronic headache and pain post resection and radiation from a biparietal hemangiopericytoma. The doctor further recounted Mr. C’s history of chronic nausea that was then under control such that he had not vomited recently. It was further noted that Mr. C had not been able to return to work, but he had a pending assessment with a brain injury rehabilitation program. The physician reported that Mr. C felt better after going camping and was getting out of the house daily at that time.
[28] In the July 27, 2020, report from Mr. C’s Cancer Agency radiation oncologist, she reported his headaches and seizures were well controlled. The doctor also noted that Mr. C had been active throughout the summer, which he felt contributed to his improved mental status.
[29] In the September 10, 2020, progress note Mr. C’s Cancer Agency physician noted he was then currently enrolled in the brain injury rehabilitation program. The doctor informed that nausea was no longer an issue for Mr. C and his headaches were under control.
[30] In the January 20, 2021, progress note Mr. C’s Cancer Agency psychiatrist noted he had returned to work and was managing the required effort to work, despite having ongoing limitations and poor stamina. The psychiatrist stated that Mr. C had taken a junior position with less cognitive requirements and was slowly adding more complexity to his work as tolerated.
[31] In the February 1, 2021, progress note Mr. C’s Cancer Agency psychiatrist noted he took a break from work to attend the call. The psychiatrist recounted Mr. C’s report about the VPB recently responding to his OPCC complaint by email. The psychiatrist stated that Mr. C felt “brushed off” in that he interpreted the VPD’s response as insincere and downplaying the degree to which the police accepted responsibility for his injuries and feelings of being mistreated. The psychiatrist noted that they then spent some time problem solving next steps for Mr. C regarding his OPCC complaint, which included contacting the OPCC again and the mayor’s office if necessary. Finally, the psychiatrist noted Mr. C’s mood brightened when they discussed his upcoming camping vacation.
[32] In the February 17, 2021, virtual assessment report Mr. C’s Cancer Agency physician noted that Mr. C had returned to work in November 2020. However, in early February 2021 Mr. C reported the recurrence of his headaches with nausea. The report references a discussion about what analgesics Mr. C would use to manage the return of these symptoms.
[33] In the February 23, 2021, virtual assessment report Mr. C’s Cancer Agency radiation oncologist noted that Mr. C was finding working 50 hours a week a little bit challenging. The doctor reported that Mr. C was using compensatory strategies to cope with memory changes to get his work done but wondered about pursuing another line of work rather than going on indefinite disability.
[34] In the March 3, 2021, progress note Mr. C’s Cancer Agency physician reported Mr. C’s ongoing headaches and migraines, which were throbbing and crushing in nature. It was further reported, however, that he had less nausea and vomiting than previously. The doctor informed that Mr. C was no longer working but was leaving the house to do chores.
[35] In the April 14, 2021, progress note Mr. C’s Cancer Agency Psychiatrist indicates his headaches resolved with additional shoulder massages and by discontinuing a stimulant medication. The psychiatrist noted that Mr. C had stopped his regular job and was now doing odd jobs to supplement his income as he felt able to them.
[36] From the above review of medical reporting regarding Mr. C’s condition, there is no doubt about the seriousness of this disabilities and the fact that their severity fluctuated during the timeframe for filing. However, my review of the medical evidence indicates that despite Mr. C’s obvious challenges, he had the capacity to file a complaint with the Tribunal during the timeframe for filing and beyond. Given Mr. C’s ability to work and engage in the activities of daily living throughout much of the period in question, I am satisfied that he had the ability to research information about the Tribunal’s process online and file an online complaint form in time if he had turned his mind to this task. This in no way takes away from my appreciation of the fact that Mr. C was suffering due to his serious medical conditions.
[37] In deciding Mr. C was not precluded from filing his complaint for reasons related to his various disabilities, I found the evidence related to his ability to file the OPCC complaint approximately four months after the incident with the Respondents compelling. In August 2020, Mr. C showed that he was capable of learning about the OPCC process and filing an online complaint form regarding the conduct found in this Complaint. Without doubting Mr. C was experiencing a level of ongoing disability at that time; he was able to file a complaint in another forum relaying coherent details about the incident described in this Complaint. While also acknowledging that Mr. C’s submits that he struggled to obtain legal advice about filing this Complaint as he was unwilling to take chances in exposing himself to COVID-19, he has not adequately explained why he was able to overcome his disabilities and legitimate concerns about catching the virus to file the OPCC complaint and not file this Complaint.
[38] Mr. C’s reasons for late filing also focused on his inability to access free or low-cost legal advice during the pandemic. He claims that it took over a year after his encounter with the VPB at the end of April 2020 to receive legal support from the Law Students Legal Advice Program [LSLAP]. Without providing details as to when he first reached out to LSLAP and the date he connected with them on this matter, he notes that he only met with LSLAP after the limitation period had expired.
[39] The Respondents argue Mr. C has not sufficiently detailed his inability to seek out legal assistance during the pandemic to attract the public interest. They further argue that because Mr. C demonstrated the ability to initiate the OPCC process during the pandemic using a similar online form, he could have researched the Tribunal’s process on his own to initiate this Complaint.
[40] I accept that accessing free or low-cost legal advice was more difficult during the pandemic as these service providers were often forced to close for a period and pivot to providing their services from in-person to online. However, I am unwilling to conclude such a reason for delay should automatically attract the public interest without more evidence. As noted by Mr. C, unlike the Courts the Tribunal did not suspend its deadlines filing during the recent pandemic, but rather informed the parties that pandemic related delays would be one of the factors for consideration in the exercise of its discretion.
[41] In this case, Mr. C has not provided the necessary information indicating when he first approached LSLAP, or other free help organizations, for assistance and how long it took to meet with them and formulate his complaint apart from stating generally that it took over a year to receive legal support from LSLAP. Without more details related to the nature of the inaccessibility for advice, I am unwilling to find this reason attracts any significant public interest. Further, while appreciating Mr. C had a legitimate fear of serious illness related to contracting COVID-19, he has also not detailed missing any opportunities for in-person assistance that he was forced to decline due to his fear of succumbing to the virus.
[42] 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.
[43] Mr. C is seeking justice to ensure that mentally and physically disabled persons receive treatment from the police that is sensitive to these personal characteristics. He asks the Tribunal to demonstrate some flexibility in providing access to justice for individuals in need facing complicated and challenging situations. While appreciating the Tribunal receives many complaints alleging disability discrimination, Mr. C requests it find public interest in allowing the complaint to proceed as it involves a vulnerable person apprehended under s. 28 of the Mental Health Act .
[44] The Respondents argue this case does not attract significant public interest as the Tribunal frequently addresses allegations of discrimination involving the provision of services to those with disabilities. They further argue that the theme of ensuring the justice system is flexible and accessible to those in need is one that is frequently discussed in Tribunal decisions and found in the purposes of the Code, which makes this case common.
[45] While appreciating the seriousness and disturbing nature of Mr. C’s allegations, I do not find his complaint is novel and unique such that it attracts some public interest in allowing it to proceed late filed. Mr. C feels wronged by the Respondents. He also appears to have been left dissatisfied by the outcome of his OPCC complaint. Unfortunately, the incident in his complaint before the Tribunal is also out of time. His late-filed complaint does not, on balance, advance the public interest through novelty of case law. The Tribunal regularly hears complaints involving disability in a service environment, about which the jurisprudence is fairly settled. In these circumstances, I am not satisfied this complaint includes a novel issue that should be heard by the Tribunal to advance the purposes of the Code. For all these reasons, the public interest engaged by this late-filed complaint does not move it past the screening threshold.
[46] Having not found that it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
V Conclusion
[47] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member