Hearns-El v. British Columbia Ferry Services Inc., 2024 BCHRT 292
Date Issued: October 22, 2024
File(s): CS-001864
Indexed as: Hearns-El v. British Columbia Ferry Services Inc., 2024 BCHRT 292
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:
James Hearns-El
COMPLAINANT
AND:
British Columbia Ferry Services Inc.
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: James Hearns-El
Counsel for the Respondent: Nicole C. M. Toye & Alyssa L. Paez
I. INTRODUCTION
[1] On June 29, 2020, Mr. Hearns-El filed a complaint of discrimination in employment based on race, colour, ancestry, place of origin and physical disability contrary to s. 13 of the Human Rights Code [Code ], against his former employer, British Columbia Ferry Services Inc. [Employer].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the Employer. I make no findings regarding the merits of this complaint.
[3] 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
[4] Mr. Hearns-El was born in the United States of America and identifies as a Black Moorish American. He is a veteran of the Persian Gulf Wars and has an ongoing Post-Traumatic Stress Disorder [PTSD] because of this experience. Mr. Hearns-El has a right flat foot.
[5] In late 1997, Mr. Hearns-El started working for the Employer after his military service ended.
[6] Despite his foot disability, Mr. Hearns-El alleges the Employer did not allow him to park in the only employee handicapped parking space at the ferry terminal for well over a year. From the complaint evidence I am unable to ascertain as to when these events occurred. Mr. Hearns-El also appears to allege that he was disciplined for not walking at work without providing further details.
[7] Mr. Hearns-El describes having a great relationship with his co-workers and states he provided them with a “cheat-sheet” for their manuals.
[8] Mr. Hearns-El alleges that he experienced ongoing racial discrimination from management staff during his 22 years working for the Employer. This discrimination allegedly resulted in him not receiving opportunities to advance in his career and being blamed for things he did not do. While his co-workers were awarded promotions, Mr. Hearns-El alleges he was not permitted to work in peace.
[9] In June 2003, Mr. Hearns-El alleges a regional manager told him that he would not be allowed to train to work in the ferry terminal tower, despite passing the necessary assessment. He alleges the manager told him that his presence in the tower would make the other employees, who were white, feel uncomfortable.
[10] In May 2006, Mr. Hearns-El alleges the same regional manager told him that while he could not stop him from being a relief supervisor, he was never going to be promoted to a regular supervisor position. Mr. Hearns-El alleges the regional manager had already been forced to promote him to relief supervisor after he complained to a previous employee relations manager.
[11] In the June 12, 2019, while meeting with another employer relations manager, Ms. A, and the newly hired terminal maintenance regional manager, Mr. B, Mr. Hearns-El alleges that Mr. B said he did not respect him, his family members or his people. Mr. Hearns-El alleges Ms. A told him that because Mr. B was his manager he had to do what he said.
[12] The Employer’s June 13, 2019, letter of expectations signed by Mr. B, informed Mr. Hearns-El that he was expected to conduct himself and carry out his duties in professional and courteous manner. Mr. Hearns-El states he could not believe that after what Mr. B had said to him about not respecting him, his family and his people, he could issue such a warning to him about his conduct.
[13] On June 18, 2019, Mr. Hearns-El resigned from his position with the Employer. He alleges that he decided to retire early due to high levels of stress and continuing discrimination from management staff.
[14] In his June 18, 2019, resignation email to Ms. A, Mr. Hearns-El states he was leaving to seek more care for his PTSD from the veteran’s hospital in the United States where he attended. He further states that he did not mean to cause a fuss about trying to let the terminal maintenance department know that he had lots of appointments coming up. Mr. Hearns-El states he had no personal issues with Mr. B but was trying to work through his PTSD for a long time and wanted to finally get the necessary treatment needed to make his life whole again. He states that PTSD had him acting out and he needed to address it head on without being paranoid about whether the Employer was going to allow him to attend his various doctors appointments.
III. ANALYSIS AND DECISION
[15] Section 22 of the Code provides:
(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.
[16] 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
[17] The Complaint was filed on June 29, 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 June 29, 2019.
[18] The discrimination allegations in question occurred in
2003, 2006 and on June 13, 2019 with other more general allegations
occurring throughout Mr. Hearns-El’s career with the
Employer ending on June 18, 2019. 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
[19] 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; Mzite at para. 55.
[20] I have first considered the length of delay in filing. Mr. Hearns-El makes two specific allegations many years ago in 2003 and 2006 and one other allegation in the days leading up to his resignation on June 18, 2019. Unfortunately, I am unable to determine when the allegations concerning his use of the handicapped parking occurred. In terms of the allegations from 2003 and 2006, these allegations are more than decade out of time. Such a delay is extreme, and absent truly extraordinary circumstances, a respondent should not be expected to answer allegations of discrimination so long after the fact: Prasad v. The College of Physicians and Surgeons of British Columbia , 2004 BCHRT 21, at para. 15.
[21] Focusing on the latest allegations occurring in June 2019 when Mr. Hearns-El resigned, the delay associated with these allegation is over two weeks, which is short, but not trivial: Panditaratne v. TransLink and Lownsbrough, 2009 BCHRT 172, at para. 10. In Panditaratne, a complaint less than a month late was not accepted because there was no explanation for the delay and no other indication that it would be in the public interest to accept the late complaint. In Berladyn v. Omega Nutrition, 2016 BCHRT 105, at para. 13, the Tribunal refused to accept a complaint with a similarly short delay. In that case, the Tribunal said, “the length of the delay is over two weeks, which is relatively brief and not substantial. Such a delay often tends to suggest that it would be in the public interest to accept a complaint , but even short delays can be outweighed by other factors: Andres v. Hiway Refrigeration, 2009 BCHRT 135.” In this case, a more than two-week delay suggests that it may be in the public interest to accept Mr. Hearns-El’s complaint, but other factors must be weighed before reaching such a conclusion.
[22] I now turn to Mr. Hearns-El’s reasons for his delay in filing. First, he states that he believed he could not file a complaint while he was a union member, which is incorrect. While appreciating Mr. Hearns-El’s honesty as to why he late filed the complaint, 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. Hearns-El 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. Mr. Hearns-El resigned from his position with the Employer more than one year before he filed this Complaint, and he has not provided any details about filing a grievance to get his job back such that his union membership might have been preserved after he resigned. If Mr. Hearns-El was no longer a union member during most of the timeframe for filing, that fact that he thought being in the union prevented him from filing a complaint does not make a great deal of sense as a reason for the delay. As such, I do not find Mr. Hearns-El’s ignorance of the Code attracts any public interest in allowing it to proceed.
[23] Second, Mr. Hearns-El states the Complaint was late filed because he was depressed and needed medical attention for his PTSD during the timeframe for filing. At the time his complaint was filed in June 2020, Mr. Hearns-El reports that he was still recovering from his psychological trauma and anticipated that it would take at least two more years to recover. Mr. Hearns-El reports having regular medical appointments at the veterans medical center in the United States before resigning to keep him at work. However, he reports that he decided to leave his job to concentrate on his health and family as of mid 2019.
[24] Where the 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 difficulty coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170, at para. 21. There is no doubt Mr. Hearns-El had ongoing mental disabilities during the one-year timeframe for filing this complaint. In reaching this conclusion, I accept his evidence regarding ongoing PTSD and depression. The more difficult question in this case, is whether Mr. Hearns-El’s disabilities disabled him from filing the Complaint. From the limited information provided about the extent of Mr. Hearns-El’s mental disability, it appears that his condition was ongoing prior to resigning from work, and he was receiving treatment that was maintaining him at work. Mr. Hearns-El did not provide any evidence indicating he suffered a significant change in functioning at the time of his resignation. While acknowledging his statement that he was very depressed, and was still in treatment at the time his complaint was filed, Mr. Hearns-El has not provided any evidence indicating that his level of functioning was limited to the point that he was precluded from filing a complaint during the relevant timeframe.
[25] 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: Mzite at 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: Mzite at para. 67.
[26] Mr. Hearns-El is seeking justice for the race and physical disability discrimination he experienced in the workplace. While I accept that the Tribunal frequently addresses allegations of discrimination in employment, including allegations of differential treatment and racial slurs, Mr. Hearns-El’s complaint also engages the specific context of anti-Black racism in the workplace, which has not been commonly dealt with at the Tribunal. In Umolo v. Shoppers Drug Mart, 2021 BCHRT 166 at para. 29, the Tribunal acknowledged that anti-Black racism may share themes with other forms of racism but is distinct and should be assessed within its own context. In that case, the Tribunal considered the allegations of anti-Black racism to be a factor weighing in the public interest of accepting the late-filed complaint. I agree with the reasoning and find it applies to this case. I accept that this factor weighs in favour of finding it is in the public interest to accept the late filed complaint.
[27] Having reviewed the factors for consideration in this case, on balance I am not satisfied that it is in the public interest for Mr. Hearns-El’s complaint to proceed late filed. The delay related to the 2003 and 2006 allegations is extreme and weights heavily against allowing the late filed complaint to proceed. The delay related to the June 12, 2019, allegation is relatively brief, which suggests that it would be in the public interest to accept a complaint if other factors do not outweigh it. In terms of reasons for late filing, both Mr. Hearns-El’s belief that he could not file when he was union member and his level of disability from filing related to his PTSD and depression, do not attract any significant public interest in allowing the complaint to proceed late filed. While accepting there is some public interest in allowing a complaint to proceed concerning anti-Black racism, in the circumstances of this case, this factor when viewed with the reasons for late filing and overall delay does not raise this case to one that should proceed despite it being late filed.
[28] 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
[29] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member