Graveley v. Vancouver Island Mental Health Society, 2024 BCHRT 289
Date Issued: October 16, 2024
Files: CS-003282, CS-003934, CS-004697
Indexed as: Graveley v. Vancouver Island Mental Health Society, 2024 BCHRT 289
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:
Amanda Graveley
COMPLAINANT
AND:
Vancouver Island Mental Health Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c), (g)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Caileigh Franco
Counsel for the Respondent: Travis Sippel
I INTRODUCTION
[1] Amanda Gravely worked as a tenant support worker for the Vancouver Island Mental Health Society. She says that during her employment the Society discriminated against her based on mental disability, sex, and gender identity or expression. She says that the Society ignored her when she complained about being harassed by a client, and that the Society subsequently bullied and harassed her by giving her negative performance reviews and disciplining her.
[2] Ms. Graveley filed three complaints that the Tribunal joined pursuant to section 21(6) of the Human Rights Code. In her first complaint Ms. Graveley alleges the Society discriminated against her in employment based on her protected characteristics contrary to s.13 of the Code. Ms. Graveley subsequently filed two retaliation complaints in relation to her first complaint. She says the Society’s conduct, in addition to being discriminatory, is also retaliatory because the Society was aware she might file a human rights complaint.
[3] The Society denies discriminating or retaliating. It applies to dismiss the complaints under s. 27(1)(c) of the Code because it says their alleged conduct was not related to any protected characteristic or related to other complaints. It also says a number of Ms. Graveley’s allegations occurred more than one year before the first complaint was filed and applies to dismiss those allegations under s. 27(1)(g).
[4] For the following reasons, I allow the application to dismiss the complaints in their entirety. I dismiss Ms. Graveley’s allegations dating between June 2018 and January 2020 pursuant to s. 27(1)(g) because they are late filed. I dismiss the remainder of Ms. Graveley’s allegations pursuant to s. 27(1)(c). In my view, the Society is reasonably certain to establish that it had non-discriminatory and non-retaliatory reasons for their conduct and there is no reasonable prospect these allegations can succeed.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact except as to the timeliness of the complaints.
II BACKGROUND
[6] The background facts are taken from the parties’ materials. The parties agree on much of the factual background of the complaints and what occurred during Ms. Graveley’s employment.
[7] The Society is an organization providing supportive housing, rehabilitation, and services to individuals with mental health and substance use issues. The Society operates supportive housing units where staff provide tenant support services to residents.
[8] Ms. Graveley has Post Traumatic Stress Disorder (PTSD). She was employed by the Society as a tenant support worker. From 2015 to 2018 she worked at one of the Society’s supportive housing units providing care to residents. She subsequently worked at a different job site from sometime in 2019 to January 2020.
[9] Ms. Graveley made complaints to the Society about the behaviour of residents she provided care for between 2018 and 2020. She said the residents acted inappropriately. Ms. Graveley subsequently complained about the Society “failing to respond or intervene in meaningful ways.” Ms. Graveley said that instead of dealing with the residents, the Society bullied and harassed her.
[10] In response to Ms. Graveley’s complaints of bullying and harassment, the Society retained a third-party investigator in August 2020. The third-party investigated the allegations of bullying and harassment and provided a written report to the Society on December 21, 2020. The investigator concluded that the Society had not bullied and harassed Ms. Graveley.
[11] On January 15, 2021, a coworker reported to the Society that Ms. Graveley made a death threat about another worker by saying, “If they put that fucking idiot [worker] in the meeting with me I will probably kill her.” The Society placed Ms. Graveley on paid leave pending an investigation into the comment made by Ms. Graveley.
[12] On January 25 and January 28, 2021, as part of its investigation, representatives of the Society met with Ms. Graveley. Ms. Graveley denied that she made comments about killing a coworker. The Society concluded that Ms. Graveley did not pose a threat to herself or others and invited her to return to work. Ms. Graveley chose to take two-weeks off before returning to work.
[13] Ms. Graveley went on long term disability in February 2021 and has not returned to work since.
III DECISION
[14] Ms. Graveley filed her first complaint on February 12, 2021, and subsequently filed two additional complaints on April 29, 2021, and August 17, 2021. From the materials I understand Ms. Graveley’s allegations are:
a. On June 1, 2018, after a resident made comments about her attire, Ms. Graveley was told by a coworker to go home and change.
b. In October 2019, a coworker told Ms. Graveley that a manager made critical comments about her work.
c. Between November 2019 to January 18, 2020, the Society failed to respond to her complaints about residents.
d. On May 15, 2020, Ms. Graveley was given a job performance review.
e. On May 22, 2020, a manager investigated allegations that Ms. Graveley was copying and removing confidential information from the workplace and engaging in non-work activities during work hours. Ms. Graveley was given a verbal warning about her behaviour on May 25, 2020, confirmed in writing by a letter dated May 29, 2020.
f. On December 21, 2020, Ms. Graveley was given a copy of a third-party report about her complaints of bullying and harassment. The investigator found no bullying and harassment had occurred.
g. On January 15, 2021, Ms. Gravely was placed on paid leave pending an investigation of allegations that she made death threats about a coworker.
h. On January 25 and January 28, 2021, Ms. Graveley met with representatives of the Society about the allegations that she made death threats.
A. Section 27(1)(g) – Timeliness of the Complaint
[15] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[16] A complaint is filed in time if the last allegation of discrimination happened within one year of filing, 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.
[17] The continuing contravention concept is not meant to arbitrarily sweep any and all untimely allegations into a complaint that is properly before the Tribunal:Van Baranaigien v. BC Ferry Services Inc., 2016 BCHRT 33 at para. 44. Rather, the purpose of s. 22(2) of the Code is to allow complainants to seek redress for alleged discrimination falling outside the Code ’s time limits if, and only if, “the complaint that is properly before the Tribunal represents a continuation of the earlier discrimination”: School District at para. 43.
[18] 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. Various factors may be relevant to this assessment, including the character of the allegations and whether they are separated by gaps in time: Karageorgos v. Giardino Restaurant Ltd. , 2024 BCHRT 190, at para. 54.
[19] The burden is on the complainant to establish that their complaint alleges a timely continuing contravention: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 38. If the Tribunal finds that the complaint does not allege a timely continuing contravention and was filed outside the one-year time limit, it can still exercise its discretion to accept the late complaint: Code, s. 22(3).
[20] Ms. Graveley has made allegations of discrimination occurring from June 1, 2018, to January 25, 2021. Ms. Graveley filed her first complaint on February 12, 2021. Therefore, allegations of incidents occurring before February 12, 2020, are out of time unless they are part of a continuing contravention. The allegations relating to the period after February 12, 2020, are timely and cannot be dismissed under s. 27(1)(g).
[21] Ms. Graveley makes three allegations that are untimely unless they form part of a continuing contravention. They are the allegations relating to being sent home to change her clothes; a manager criticizing her to a coworker, and; the Society failing to respond to her complains about residents and the work environment.
[22] Ms. Graveley says because all of her allegations pertain to her workplace and she alleges misconduct by the Society, they are all part of a pattern of behaviour of similar character.
[23] In my view, Ms. Graveley’s allegations of events occurring before February 12, 2020, are not of the same character as the timely allegations. The timely allegations deal with distinct instances where Ms. Graveley was given a negative performance appraisal, warned that her conduct breached rules, given a copy of a workplace investigation report, and was placed on leave pending an investigation about her conduct. Based on the information before me I am unable to conclude that all of Ms. Graveley’s allegations contain similar characteristics to be considered a continuing contravention.
[24] First, the allegations are each separated by a gap in time. Ms. Graveley’s first allegation occurred on June 1, 2018, 16-months before the next alleged incident and 20-months before the first timely allegation. Similarly, the allegation that the Society failed to respond to her complaints about residents is alleged to have occurred between November 1, 2019, and January 18, 2020, so even the most recent untimely allegation occurred at least four months before the first timely allegation. Ms. Graveley has not explained or addressed the gaps in time between the alleged incidents in her submissions. In my view, the gaps between each allegation are a factor that weighs against a finding that the allegations form a continuing contravention.
[25] Next, I find insufficient explanation or contextual details to support that each allegation is of a similar character to be considered a continuing contravention. Each of Ms. Graveley’s allegations arise from distinct factual events. As I understand her submissions, Ms. Graveley asserts that all the alleged conduct are breaches of the Code that occurred in the context of her employment and therefore are all of a similar nature. However, I am not persuaded that distinct allegations of discrimination are of a similar character because they occurred in the same workplace: Hilger v. Dr. Terry Abel Dentistry and another, 2023 BCHRT 32 at para. 39.
[26] I cannot say that the allegations are of a similar character simply because Ms. Graveley was disciplined when she was disciplined for different reasons in each instance. Ms. Graveley says she was made to go home and change her attire because of her sex and gender expression. This is distinct from a subsequent warning she says she received for copying information and engaging in non-work conduct.
[27] Similarly, I am not persuaded that Ms. Graveley hearing from a coworker that a manager made critical comments about her is of a similar character to receiving a performance review or being disciplined. One appears to be an allegation of a comment being made in a workplace while the other is an allegation about how Ms. Graveley’s job performance was assessed.
[28] In my view, Ms. Graveley’s allegation that the Society failed to respond to her complaints about residents between November 2019 to January 2020 is not similar in character to her other allegations. In one, Ms. Graveley is alleging the Society’s response to her specific complaints about the conduct of residents was inadequate. In her other allegations Ms. Graveley says that the Society discriminated in how they assessed her job performance and conduct.
[29] Further, the evidence before me is that in 2019 Ms. Graveley transferred to a different job site, where she was supervised by different managers, and had different duties. In my view, allegations dealing with Ms. Graveley’s experience and poor assessment of her performance in different roles, at different job sites, performing different duties are distinct from one another and not of a similar character because the allegations relate to two distinct periods of employment.
[30] I am unable to see how Ms. Graveley’s allegations before February 12, 2020, are of the same character as her timely allegations, taken individually or as a whole. Further, the gaps in time weigh against finding these allegations part of a continuing contravention. Therefore, I find that the allegations of incidents before February 12, 2020, are not part of a continuing contravention and untimely.
[31] Because parts of the complaint are late-filed, I next consider whether to accept the late-filed allegations under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[32] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at paras. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[33] Ms. Graveley says she delayed filing her complaints because she was attempting to resolve the situation with the Society by other means such as taking a position at a different work site in 2019.
[34] The Tribunal encourages parties to resolve their disputes on their own before taking the step of filing a complaint: Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para 30. However, the mere pursuit of other avenues does not suspend the time limit for bringing a complaint, and on its own is not sufficient to warrant the acceptance of a late complaint: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170 at para. 15.
[35] Here, I appreciate that Ms. Graveley says she was attempting to resolve some of the issues by changing work sites, however, there is little other information before me about why she thought this would resolve her employment issues. Ms. Graveley asserts she changed jobs sometime in 2019 but did not file her complaint until February 2021. Without more I am not persuaded that Ms. Graveley taking a position at a different work site is a compelling reason for a delay of up to two years from transferring to filing her complaint. Based on the paucity of materials before me, Ms. Graveley’s reason for delaying filing her complaint is not compelling.
[36] In considering whether acceptance of a late-filed complaint is in the public interest, the Tribunal has also considered whether there is anything particularly, novel, unique or unusual about the complaint that has not been addressed in other complaints: Hilger at paras. 64 to 65.
[37] Ms. Graveley says the Society is a harmful workplace that does not support its employees. She argues that it is in the public interest to accept the late-filed portions of her complaint so the Tribunal may compel the Society to address staff complaints in a meaningful way. The Tribunal has heard and decided many complaints alleging that an employee was treated differently by an employer because of their protected characteristics: Richardson v. Great Canadian Casinos and another, 2019 BCHRT 265; Prosko v. District of Taylor (No. 2), 2024 BCHRT 207; Ms. K v. Deep Creek Store and another, 2021 BCHRT 158. I am not persuaded that Ms. Graveley’s feeling about her employer is a basis for finding this complaint to be unique, novel, or unusual so that it is in the public interest to accept the late-filed portions of the complaints.
[38] Considering all of the circumstances, I am not persuaded that it is in the public interest to accept the late-filed portions of the complaints. It is therefore not necessary to consider whether substantial prejudice would result to any person because of the delay.
[39] I dismiss the allegations of events before February 12, 2020, under s. 27(1)(g) of the Code. I next consider if there is no reasonable prospect that Ms. Graveley’s timely allegations could succeed under s. 27(1)(c).
B. Section 27(1)(c) – Is there no reasonable prospect the complaints could succeed?
[40] Ms. Graveley repeats many of the same allegations in her three complaints. She characterizes some of her allegations as discrimination, other allegations as retaliation, and some allegations as both discrimination and retaliation.
[41] Under the circumstances, I find it most efficient to consider all of Ms. Graveley’s allegations as allegations of discrimination first and next consider them as allegations of retaliation.
1. Is there no reasonable prospect the complaints could succeed as allegations of discrimination?
[42] The Society applies to dismiss Ms. Graveley’s complaints on the basis that they have no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Society to establish the basis for dismissal.
[43] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[44] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[45] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[46] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 67.
[47] To prove her complaint of discrimination at a hearing, Ms. Graveley would have to prove that she has a characteristic protected by the Code, she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[48] I understand the Society’s primary argument is that Ms. Graveley has no reasonable prospect of proving that her protected characteristics was a factor in the Society giving her a poor performance review, issuing warnings about violating policies, investigating her complaints, or placing her on leave pending an investigation. It argues that it is reasonably certain to prove at a hearing that all of its conduct was based solely on Ms. Graveley’s conduct and job performance.
[49] Ms. Graveley disagrees and says that the Society is a “toxic and harmful workplace.” She argues that the Tribunal should draw an inference of discrimination because other employees of the Society have complained about the workplace.
[50] Parties rarely announce discrimination based on a protected characteristic. Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and in the inferences that are reasonable to draw from that evidence: Hill v. Best Western and another, 2016 BCHRT 92 at para. 28.
[51] However, the availability of inferences does not create a presumption of discrimination: Richardson at para. 144. A complainant must point to some evidence from which it can be inferred that their protected characteristic played some role in the adverse treatment they experienced: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 at para. 28.
[52] For the following reasons I am persuaded that Ms. Graveley’s complaints have no reasonable prospect of success.
[53] While Ms. Graveley has provided little documentary evidence about her allegations, the Society has provided documentary evidence inconsistent with Ms. Graveley’s assertion that her protected characteristics was a factor in the Society’s conduct. The Society has provided its policies, contemporaneous correspondence, work notes from Ms. Graveley’s coworkers and supervisors, and the investigative report about Ms. Graveley’s complaint of harassment. The documentary materials support the Society’s position that it provides regular performance reviews of employees based on observations and input from supervisors and managers. The policies and correspondence support that the Society prohibits employees from removing confidential information and that there was a report that Ms. Graveley was copying and removing files. The materials support the Society’s assertion that it hired an independent investigator to investigate Ms. Graveley’s complaints of bullying and harassment. The investigator interviewed Ms. Graveley’s coworkers, managers, and individuals she complained about to prepare their report. The materials also show that an employee reported Ms. Graveley saying, “If they put that [coworker] in the meeting with me I will probably kill her.” The evidence shows the Society considered Ms. Graveley’s statement a threat of violence against a coworker and placed her on leave pending an investigation.
[54] The documentary materials are inconsistent with Ms. Graveley’s assertion that she was investigated and disciplined because of her protected characteristics. For example, while Ms. Graveley says on May 29, 2020, the Society gave her a warning because she was unable to perform her work due to PTSD symptoms, the warning letter submitted into evidence says she was disciplined for engaging in non-work-related activities during work hours. While Ms. Graveley asserts that being placed on leave on January 15, 2021, was discriminatory, the evidence supports the Society’s position that an employee reported Ms. Graveley uttered death threats about a coworker.
[55] The Society has provided a non-discriminatory explanation for their conduct that is supported in the documentary evidence. The materials support the Society’s position that each instance where it provided feedback or discipline to Ms. Graveley was based on information and reports from other employees.
[56] Further, the Society has put forth evidence that shows it followed its usual process for initiating an investigation into breaches of its policies. The materials before me support the Society’s assertion that when it was made aware of a potential breach of its policy it investigated the allegation by asking Ms. Graveley her version of events. The evidence also shows the independent investigator conducted its investigation by interviewing witnesses and individuals Ms. Graveley alleged were bullying and harassing her.
[57] In light of the Society’s evidence about its reasons for its conduct, I am not satisfied that Ms. Graveley’s assertion that her job performance was unfairly assessed and that she was disciplined for discriminatory reasons has been taken out of the realm of conjecture. Even if I had been persuaded that Ms. Graveley had taken an inference of nexus out of the realm of conjecture, I find the Society is reasonably certain to rebut that inference based on its non-discriminatory explanations of its conduct.
[58] Finally, I consider Ms. Graveley’s complaint as allegations of retaliation.
2. Is there no reasonable prospect the complaints could succeed as allegations of discrimination?
[59] For a retaliation complaint to succeed under s. 43 of the Code, Ms. Graveley would have to prove that the Society was aware that she had made or was going to make a human rights complaint, the Society engaged in or threatened to engage in retaliatory conduct, and there is a sufficient connection between the adverse treatment and the human rights complaint. This connection can be established by proving that the Society intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct: Gichuru v. Pallai, 2018 BCCA 78 at para. 58.
[60] On the materials before me, I am persuaded that there is no reasonable prospect that Ms. Graveley could succeed in establishing that there is a connection between her human rights complaint and the alleged adverse impacts. Viewed in light of the entirety of the evidence, I cannot draw a reasonable inference that Ms. Graveley’s complaint was a factor in the Society’s assessment of her job performance, disciplining her, or conducting an investigation because the Society has provided a non-discriminatory explanation for their conduct that is supported in the documentary evidence.
[61] Further, the Society argues that because all of Ms. Graveley’s allegations are about conduct occurring between May 15, 2020, and January 28, 2021, which precedes her filing her first human rights complaint on February 12, 2021, there is no reasonable prospect that a connection between the alleged adverse treatment and Ms. Graveley’s human rights complaint could be established. While s. 43 prohibits retaliatory conduct because a person might complain, Ms. Graveley’s allegation that she was given a poor performance review, and disciplined occurred in May 2020, nine months before her complaint was filed. In my view the timing of the conduct in these allegations is not sufficiently close to allow a reasonable perception that there is a nexus with Ms. Graveley’s potential discrimination complaint.
[62] Ms. Graveley argues that, in the context of the ongoing complaints she had about the Society, its decision to investigate and the manner in which it investigated and disciplined her is retaliatory. She says that the discipline she received, a warning for copying confidential information and engaging in non-work conduct and being placed on leave pending an investigation about whether she made a death threat, was disproportionate and supports a reasonable inference of retaliation.
[63] While I appreciate that Ms. Graveley says the Society could have taken other steps, the issue before me is not whether other options were available. Rather, it is whether the conduct of the Society supports a reasonable perception that the Society intended to retaliate against Ms. Graveley for her human rights complaint. In my view, on the whole of the evidence, the Society is reasonably certain to prove that its decision to investigate and discipline was based on wholly non-retaliatory considerations, and that a reasonable complainant, apprised of the facts, would not consider the conduct to be retaliatory.
IV CONCLUSION
[64] The application to dismiss the complaints is granted under s. 27(1)(c) and (g) of the Code. The complaints are dismissed in their entirety.
Edward Takayanagi
Tribunal Member