O’Hara v. College of New Caledonia and another, 2024 BCHRT 283
Date Issued: October 4, 2024
File: CS-000748
Indexed as: O’Hara v. College of New Caledonia and another, 2024 BCHRT 283
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:
William O’Hara
COMPLAINANT
AND:
College of New Caledonia and Katherine Plett
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: William O’Hara
Counsel for the Respondents: Kacey Krenn and Madeline Lusk
I. INTRODUCTION
[1] On January 7, 2020, Mr. O’Hara filed a complaint of discrimination in employment and other areas based on various grounds contrary to the Human Rights Code[Code], against the College of New Caledonia [College] and the College’s library director, Katherine Plett.
[2] At the Tribunal’s request, in mid 2023 Mr. O’Hara provided more information in support of his complaint in the form of various amendments.
[3] On February 2, 2024, the Tribunal decided how Mr. O’Hara’s complaint could proceed as follows:
[4] The Complaint in employment, s. 13 of the Code, related to a job application made in March 2019 could proceed against the College and Ms. Plett, on the grounds of sex, age, physical disability, race, and perceived criminal conviction.
[5] The Complaint in employment related to job applications made in 2016, 2017, and 2018, could proceed to time-limit submissions against the College and Ms. Plett, on the grounds of sex, age, physical disability, race, and perceived criminal conviction.
[6] The Complaint in services related to Mr. O’Hara’s participation in the Targeted Initiative for Older Workers [TIOW] Training program in 2016, could proceed to time-limit submissions against the College only, on the grounds of sex, age, physical disability and race.
[7] The issue before me with respect to timeliness is whether to accept the out of time allegations as part of a continuing contravention of the Code, and if not, whether it is in the public interest to accept them late filed. I make no findings regarding the merits of this complaint.
[8] For the reasons that follow, I find that Mr. O’Hara’s job application allegations in 2016, 2017 and 2018 are accepted as part of a continuing contravention of the Code. However, the 2016 TIOW Training program allegations do not form part of a continuing contravention of the Code, and it is not in the public interest to accept them late filed.
II. BACKGROUND
[9] At the time Mr. O’Hara’s complaint was filed in January 2020 he was 74 years old. Mr. O’Hara does not identify as Indigenous.
[10] Mr. O’Hara reports being blind in his left eye and having a permanent low back disability. As a result of his disabilities, he alleges that he was limited to working part-time only at the College.
[11] In 2016, Mr. O’Hara applied for the College’s TIOW training program at the Fort St. James campus. While the College restricted the program to Indigenous applicants, Mr. O’Hara alleges it failed to mention this restriction on its website. As a result, Mr. O’Hara alleges that his emails seeking access to the program were left unanswered.
[12] In September 2016, Mr. O’Hara alleges he was interviewed by phone for the TIOW Training program but was immediately rejected as being too old for the program.
[13] Some days later in September 2016, Mr. O’Hara alleges he was accepted into the TIOW Training program with a scheduled start a few days later. Once in the program he allegedly realized that it was attended by Indigenous students only, apart from one other female student under 55 years of age and himself. Four days after the program started Mr. O’Hara alleges the College reversed its decision to allow him to participate in the program because of his age and non-Indigeneity. As a result, he did not receive the intended training to gain employment and drained his savings.
[14] In 2016, 2017, 2018 and March 31, 2019, Mr. O’Hara alleges applying for permanent part-time positions with the College’s libraries in Prince George and elsewhere. He alleges that he was not interviewed or hired for any of these positions despite being qualified. His alleged qualifications included being a daily user of the College’s library in Prince George for 3.5 years and completing an almost one-year successful rehabilitation placement at the city’s public library and archives.
[15] Mr. O’Hara alleges Ms. Plett refused to interview or hire him for any of these positions as she favours women for this work. He alleges seeking reasons for not being hired without receiving any response. At the time his complaint was initiated he alleges only one employee out of 16, or perhaps 18, at the College’s library in Prince George was male. Mr. O’Hara alleges women were hired into library circulation duties positions despite not having used a computer and needing to be trained.
[16] Mr. O’Hara further alleges the College did not consider his applications for reasons related to his disabilities, which he disclosed to those involved in the hiring. He also alleges that he did not receive any response to his request to be hired on an equity basis due to his disabilities.
[17] Mr. O’Hara appears to further allege that the College and Ms. Plett discriminated in failing to hire him for positions in the library for reasons related to perceived criminal conviction. He alleges being fired some years earlier from a library position in Fort St. James because the chair of the library board likely thought he was another person with the same last name who was convicted of sexually assaulting a girl in the community. He appears to allege this perceived prior criminality was part of the reason he was treated badly by the College and Ms. Plett.
[18] When asked by the Tribunal to provide details of his job applications, Mr. O’Hara referenced multiple documents in his possession, including:
- Mid 2017 – application for a library assistant position that appears to have concluded with the hiring of another person, named Barbara, who started working in the job in September 2017
- July 20, 2018 – application for a library assistant position – circulation assistant/shelver
- March 31, 2019 – application for a library assistant position – circulation assistant/shelver
[19] Mr. O’Hara further alleges the College and Ms. Plett failed to consider his casual library work job applications. He claims the Respondents hired two retired female employees instead of him in these positions.
[20] Mr. O’Hara now resides in the United States. He alleges the Respondents’ blanket refusal to hire him resulted in lost wages and a prolonged attack on his dignity.
III. ANALYSIS AND DECISION
[21] 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.
[22] 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
[23] The Complaint was filed on January 7, 2020. 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 January 7, 2019.
[24] As noted above, the Tribunal’s February 2, 2024, decision concluded Mr. O’Hara’s March 2019 job application allegations can proceed as timely allegations against the College and Ms. Plett in employment based on sex, age, physical disability, race, and perceived criminal conviction.
[25] As a result, the focus of this part of my decision on timeliness is on whether the March 2019 timely allegations are capable of tethering Mr. O’Hara’s late filed allegations as part of a continuing contravention of the Code.
[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] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dicksonat paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[28] I have first considered whether Mr. O’Hara’s late allegations are of a similar nature to the timely allegations in March 2019. The parties appear to agree that Mr. O’Hara’s various library job applications were of a similar nature for the purposes of determining the existence of a continuing contravention. I agree that these allegations, ranging from 2016 to the in-time allegation in 2019, are of a similar nature in that Mr. O’Hara alleges he was passed up for consideration in several similar library assistant positions over the years, both permanent and temporary, for reasons related to his various personal characteristics.
[29] I am not convinced, however, that the 2016 TIOW Training program allegations are of a similar nature to Mr. O’Hara’s other allegations. While acknowledging Mr. O’Hara’s belief that the program related events can form part of a continuing contravention as they represent one element of on-going negative treatment of a similar nature by the College, I find the allegations are not similar in that they arise in two different contexts, one being employment and the other being access to services. While appreciating Mr. O’Hara tried to access the TIOW Training program as a step towards gaining employment, in my view accessing a service provided by the College and trying to secure employment from the College are two distinct categories of allegations that are not similar in nature. In reaching this conclusion, I also note that Mr. O’Hara dealt with separate groups of individuals at the College on two different campuses in relation to these different sets of allegations. With this in mind, I do not find that the timely job application allegation in March 2019 can bring in the untimely TIOW Training program allegation in 2016 as part of a continuing contravention of the Code.
[30] Whether it is in the public interest to allow the TIOW Training program allegations in 2016 to proceed late filed will be dealt with separately below.
[31] The parties disagree on whether the gaps between the 2016 to 2019 job applications allegations are too large and unexplained to form a continuing contravention of the Code. The Respondents argue the gaps between job applications separated by many months are too large to form a continuing contravention. They argue Mr. O’Hara only applied for four library positions when multiple potential positions were available between 2017 and 2018. As such, this case does not contain a sufficient frequency or continuity in the alleged contraventions to establish a continuing contravention. Mr. O’Hara argues the gaps in question are explainable as he applied for library assistant positions at the College as they became vacant. He appears to disagree with the College that he did not apply for all jobs available and in his view, the lapses in time between the allegations are solely related to him responding to vacancies as they occurred.
[32] For the purposes of this decision, I am persuaded by Mr. O’Hara that the gaps in the timeline of his allegations are explained by the timing of the library assistant job applications he initiated with the College. In my view, in assessing whether a continuing contravention exists, it is not crucial that Mr. O’Hara applied for every available position to fill in any gaps between the job application allegations. It may be that he missed applying for some of the positions or the College’s records of his applications do not include all the times he applied. In any event, I am satisfied that Mr. O’Hara identified job opportunities on at least three occasions prior to March 2019 and applied for them to no avail for reasons he alleges are related to his various personal characteristics. In my view, the gaps between these allegations, while somewhat lengthy, are explained by the occurrences of the jobs becoming available, and Mr. O’Hara noticing and applying for them.
[33] By way of summary, I have found Mr. O’Hara’s late filed job application allegations from 2016 to March 2019 were filed in time because they form part of a continuing contravention of the Code: s. 22(2). However, his 2016 TIOW Training program allegations do not form part of a continuing contravention, and it will now be considered whether they can proceed 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
[34] 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.
[35] I have first considered the length of delay in filing. Mr. O’Hara’s complaint related to the TIOW Training program is late filed by more than two years, which is excessive, and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170, at para. 13; Mziteat para. 59.
[36] As noted above, Mr. O’Hara believes his entire complaint was filed in time as part of a continuing contravention. As such, he did not provide any reasons for late filing his complaint and I see nothing in information before me that approaches a reason for late filing capable of attracting any public interest in allowing the TIOW Training program allegations to proceed late filed.
[37] 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.
[38] Mr. O’Hara notes the injustice of his complaint in relation to his experience in trying to access the TIOW Training program. However, the Tribunal regularly hears complaints involving the provision of educational services and discrimination related to various personal characteristics. In these circumstances, I am not satisfied this aspect of Mr. O’Hara’s complaint involving the TIOW Training program allegations in 2016 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 aspect of his complaint does not move it past the screening threshold.
[39] Having not found that it is in the public interest to accept the late-filed complaint involving the TIOW Training program allegations in 2016, I need not address the issue of whether substantial prejudice would result to any person because of the delay.
IV. CONCLUSION
[40] For these reasons, the job applications allegations from 2016 to March 2019 are accepted for filing as part of a continuing contravention of the Code. However, the 2016 allegations involving the TIOW Training program do not form part of a continuing contravention of the Code, and it is not in the public interest to allow them to proceed late filed.
Steven Adamson
Tribunal Member