Dhaliwal v. Transit Police Professional Association, 2024 BCHRT 270
Date Issued: September 25, 2024
File: CS-009603
Indexed as: Dhaliwal v. Transit Police Professional Association, 2024 BCHRT 270
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Saranjit Dhaliwal
COMPLAINANT
AND:
Transit Police Professional Association
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Rachel Roy
Counsel for Transit Police Professional Association: Sherry Shir
I. INTRODUCTION
[1] On May 18, 2023, Ms. Dhaliwal filed a complaint of discrimination in employment based on mental and physical disability contrary to s. 13 of the Human Rights Code[Code], against the Transit Police Professional Association [Union].
[2] The complaint was also initially filed against Translink Security Management Limited [Employer]; however, this aspect of the complaint was recently withdrawn by Ms. Dhaliwal.
[3] The issue before me with respect to timeliness is whether to accept the complaint against the Respondent. I make no findings regarding the merits of this complaint.
[4] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.
II. BACKGROUND
[5] From 2004 to 2021, Ms. Dhaliwal worked as a police communications operator team lead with the Employer and by virtue of her employment was a member of the Union.
[6] In Mid 2018, Ms. Dhaliwal suffered two motor vehicle accidents that she alleges left her with significant ongoing injuries requiring rehabilitation. Despite these challenges, Ms. Dhaliwal alleges that her disabilities do not restrict her from working in an appropriate accommodated position with the Employer.
[7] In June 2020, Ms. Dhaliwal alleges disclosing multiple ongoing mental disabilities to the Union in preparation for her return to work.
[8] In September 2020, Ms. Dhaliwal reports returning to work in a police support clerk position as an accommodation for her ongoing disabilities. She claims the Union did not properly address the Employer’s failure to provide the necessary accommodation where training for the new position was inadequate and the workload was inconsistent with the terms of her accommodation because she was unable to take micro-breaks or self-pace her work. Ms. Dhaliwal further reports not being able to work at home and not being provided with a sit/stand desk. She alleges that working alone without proper training exacerbated her mental and physical disabilities. Ms. Dhaliwal also alleges the Union inappropriately questioned her absences from work due to disability.
[9] In February 2021, Ms. Dhaliwal alleges being off work due to the Employer’s failure to provide suitable accommodation of her disabilities. While initially required to provide medical information in support of her absence, she reports that as of June 2021 the occupational health specialist no longer requested medical information further to the instructions of the Employer.
[10] On July 5, 2021, Ms. Dhaliwal alleges the Employer terminated her employment after concluding she was unable to perform the duties of the police support clerk position and was completely disabled from working in any position in the organization.
[11] Ms. Dhaliwal alleges the Union, despite its awareness of the decision to terminate her employment, did not inquire about the Employer’s decision to stop seeking medical information regarding her abilities after June 2021.
[12] In July 2021, the Union filed a termination grievance on behalf of Ms. Dhaliwal.
[13] On September 27, 2021, Ms. Dhaliwal alleges the Employer confirmed its position that she was terminated based on its understanding that she was completely disabled from working. Ms. Dhaliwal denies total disability from working and alleges the Union inappropriately concluded that she was unfit for any position with the Employer.
[14] Overall, Ms. Dhaliwal alleges the Union repeatedly advised her not to voice her accommodation needs until she was “signed off”. She alleges that she trusted and followed this advice, ultimately resulting in her termination in July 2021 and the confirmation of the termination at the end of September 2021.
[15] On December 15, 2021, the Union advised Ms. Dhaliwal that it would not refer the termination grievance to arbitration.
[16] In January 2022, Ms. Dhaliwal filed an internal appeal with the Union regarding its decision not to refer her termination grievance to arbitration.
[17] On January 18, 2022, Ms. Dhaliwal alleges the Union denied her internal appeal of its refusal to refer her termination grievance to arbitration.
[18] On April 20, 2022, Ms. Dhaliwal filed an application to BC’s Labour Relations Board [LRB] against the Union for its allegedly discriminatory and bad faith union representation. On June 29, 2022, the LRB set a submissions schedule for the parties ending on July 22, 2022. Ms. Dhaliwal reports the LRB extended its six months statutory timeframe for rendering a decision on this matter four times by way of letters of extension sent to her lawyer on October 18, 2022, November 29, 2022, January 13, 2023, and March 10, 2023.
[19] The LRB’s May 17, 2023, decision dismisses Ms. Dhaliwal’s application alleging the Union breached its duty of fair representation when it decided not to advance a termination grievance to arbitration.
[20] On June 1, 2023, Ms. Dhaliwal applied to the LRB for a reconsideration of the May 17, 2023, decision.
[21] On October 31, 2023, the LRB dismissed Ms. Dhaliwal’s LRB reconsideration application.
III. ANALYSIS AND DECISION
[22] 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.
[23] 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
[24] The Complaint was filed on May 18, 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 18, 2022.
[25] The discrimination allegations in question occurred from October 2020 until Ms. Dhaliwal’s termination on July 5, 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
[26] 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.
[27] I have first considered the length of delay in filing. Ms. Dhaliwal identifies September 27, 2021, as possibly the most recent discrimination allegation in addition to the July 5, 2021, termination. In my view, the Employer’s September 27, 2021, confirmation of its prior decision to terminate Ms. Dhaliwal on July 5, 2021 as supported by the Union, is not a new allegation of discrimination. In this case, the latest allegation of discrimination occurred when Ms. Dhaliwal was terminated and a later confirmation of that decision fails to create a new allegation of discrimination: Callaghan v. University of Victoria, 2005 BCHRT 589, para. 9 as upheld in Callaghan v. University of Victoria et al., 2006 BCSC 1503. As such, the Complaint is late filed by 10 months, which is significant and weighs heavily against accepting the complaint for filing in the public interest: A v. X and others, 2013 BCHRT 46 at para. 32. Even if Ms. Dhaliwal was able to demonstrate events in September 2021 were arguable contraventions of the Code, her complaint would still be significantly late filed by 8 months, which similarly weighs heavily against allowing it to proceed in the public interest.
[28] Ms. Dhaliwal’s central reason for late filing is related to choosing to proceed with the application to the LRB prior to filing a complaint with the Tribunal. She argues there is generally a strong preference for individuals involved in labour relations disputes to proceed at the LRB because of its ability to resolve human rights issues along with other labour relations related issues. In the normal course, Ms. Dhaliwal argues the LRB provides a much more expeditious process than this Tribunal by rendering a decision within three months after submissions are complete. Mr. Dhaliwal submits that upon receiving the LRB’s decision she would be able to file a human rights complaint with a focused and narrower scope of issues. Unfortunately, in this case the LRB postponed its decision on multiple occasions causing a significant delay in the filing of this Complaint.
[29] In my view, Ms. Dhaliwal’s strategy of waiting to file a complaint with the Tribunal until after pursing an application with the LRB put her at unnecessary risk of missing the deadline for filing, which does not attract the public interest in allowing the complaint to proceed late. Ms. Dhaliwal makes no claim that she was unaware of the Tribunal’s one year deadline for filing and it appears that with the guidance of counsel she was aware that her termination on July 5, 2021, was the likely date when her deadline for filing started to run. By mid December 2021, Ms. Dhaliwal knew the Union had no intention of proceeding with a termination arbitration. In mid January 2022, she learned that decision was confirmed on an internal appeal. As of the end of June 2022, when Ms. Dhaliwal learned when submissions for her LRB application would be complete, it would have occurred to her that it was going to take about three months for the LRB to render its decision. Given her knowledge that the one-year deadline for filing a complaint with the Tribunal was likely expiring at the start of July 2022, it appears Ms. Dhaliwal decided as part of her strategy to risk the late filing of this Complaint in order avoid pursing both matters concurrently. Further, once Ms. Dhaliwal knew that the LRB’s decision was going to be delayed on multiple occasions, presumably dashing any hopes she had that the LRB’s decision would be issued during the one-year timeframe for filing this Complaint, she nevertheless chose to continue to wait to file with the Tribunal. While appreciating the LRB’s ability to narrow the scope of the issues before the Tribunal, I am not convinced that waiting to file until the LRB’s decision was rendered, especially if that meant filing late, attracts the public interest in allowing this late filed complaint to proceed. In my view, Ms. Dhaliwal could have filed in time with the Tribunal to preserve her rights and waiting to do so while she pursued the matter at the LRB does not attract any significant public interest.
[30] The much more appropriate and established strategy for dealing with cases where a complainant has the option of seeking redress by way of a grievance, including an application the LRB, and filing with the Tribunal, is for them to file concurrently in time and seek a deferral of the Tribunal’s process pending the outcome of the grievance process. In this case, Ms. Dhaliwal had experienced counsel representing her at least as of April 22, 2022, when she filed with the LRB. In my view, the prudent course of action for her would have been to file concurrently with the Tribunal at that time and indicate on the complaint initiating form that a grievance related matter was ongoing, and she wanted to defer the Tribunal’s process pending the outcome of her LRB application. Having chosen not to pursue this established method for preserving her Complaint, the public interest fails to attract.
[31] Ms. Dhaliwal appears to argue that the Tribunal should find public interest in her late filing because doing so avoided the Tribunal expending resources on hearing an application for deferral of the Complaint at a time when it is dealing with a considerable backlog of cases. This argument does not attract any public interest as the Tribunal was as of mid 2022 many months behind in conducting its initial review of complaints and notifying the parties that a complaint was proceeding to deferral submissions. In these circumstances, it is highly unlikely that the Tribunal would have spent any significant amount of its resources on hearing an application to defer this Complaint during the second half of 2023 while the LRB rendered its decisions, if Ms. Dhaliwal had filed this Complaint in time. Even if such an application was heard, I fail to see how it would use any more Tribunal resources than those required to hear the application currently before me dealing with late filing of the Complaint.
[32] Ms. Dhaliwal also argues that her strategy of late filing was designed to avoid a chilling effect on the parties’ good faith efforts to resolve her complaint through the grievance process. If I understand her correctly, she is asking the Tribunal to equate her attempts to reverse the Union’s decision refusing to refer the termination of her employment to arbitration at the LRB to good faith efforts to resolve complaints through the grievance process for both the Employer and the Union. In my view, the hearing of an application by the LRB on a refusal to refer a termination grievance to arbitration is not an internal process that could be subject to a chilling effect if a complaint was filed at the Tribunal. At this point, Ms. Dhaliwal had referred the matter to a neutral third party for a determination and she has not provided any information as to how that process would somehow be thwarted by filing at the Tribunal. Further, even if the parties were in the throes of a negotiated settlement of the grievance when the due date for filing a complaint with the Tribunal arose, which was not the case here, I fail to see how a complainant informing a respondent of their need to file a complaint to preserve rights could have a significant chilling effect on negotiations for the purposes of attracting the public interest if the filing was communicated by the complainant to the other parties.
[33] Ms. Dhaliwal further argues that while recognizing the general principle that the proper course of action would be to file a human rights complaint in a timely manner and request the process be deferred pending outcome of the alternative process, the Tribunal has said the particular circumstances of the case must be considered and delay in filing due to another process is a factor that may be taken into account: Heshka v. Lafarge Canada Richmond Cement Plant and others , 2011 BCHRT 222. This not a case of the complainant relying on the poor advice of an advocate about their ability to start a complaint despite missing the deadline for filing. Here, Ms. Dhaliwal was well represented by counsel, and I see nothing to take this case out of the realm of the general principle that it was necessary to file in time to preserve her rights. As discussed above, the evidence indicates that the deadline for filing was already largely looming during the expected timeframe for the LRB decision. In my view, further delays related to the late receipt of the Employer and Union’s response and the LRB’s multiple decisions to extend the deadline for rending its decision do not explain why Ms. Dhaliwal chose at the outset, before these delays occurred, to expose herself to significant risk of missing the deadline while she awaited the LRB decision.
[34] 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.
[35] While recognizing Ms. Dhaliwal was a longtime employee who was terminated in circumstances where the efforts of the Union to accommodate her various disabilities are questionable, in my view her complaint involves a standard termination for failure to accommodate disability in a unionized environment, which is a category of complaint routinely brought before the Tribunal, the law about which is fairly settled. Ms. Dhaliwal argues her case is unique for reasons related to her vulnerability as a worker in an employment setting, particularly as a worker who experienced involuntary changes to her employment status. I agree with Ms. Dhaliwal with respect to the vulnerability of workers, especially those claiming a lack of support in the workplace by their Union, however, such cases are unfortunately far from novel at the Tribunal.
[36] Ms. Dhaliwal further argues her case is unique such that it attracts the public interest as it involves issues of public safety. In this case Ms. Dhaliwal provided switchboard relief as part of her police support clerk position. She says that she worked beyond her physical and mental capabilities, as set out in the return-to-work accommodation, to process emergency line type of calls so public safety was not put at risk. Ms. Dhaliwal argues it is in the public interest that workers should not be forced to exceed their capabilities while ensuring the safety of the public. While appreciating that Ms. Dhaliwal’s role in operating a switchboard is different from a paramedic tasked with administering first aid to save lives, I accept that there is some degree of public interest in the emergency response public safety aspect of her role that attracts the public interest in allowing the complaint to proceed. However, Ms. Dhaliwal’s termination as the final allegation in her complaint before the Tribunal is also considerably out of time. Further, Ms. Dhaliwal has not provided any reasons for her delay that attract the public interest in allowing it to proceed late. As noted above, the Tribunal regularly hears complaints involving disability in employment, 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.
[37] 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
IV. CONCLUSION
[38] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member