The Worker v. The Employer, 2024 BCHRT 305
Date Issued: October 30, 2024
File: CS-009031
Indexed as: The Worker v. The Employer, 2024 BCHRT 305
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:
The Worker
COMPLAINANT
AND:
The Employer
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: The Worker
On behalf of the Employer: Sasa Popovich, The Law Centre
I Introduction
[1] On March 2, 2023, the Worker filed a complaint based on sex, gender identity or expression, mental and physical disability and age contrary to s. 13 of the Human Rights Code [ Code ], against the Employer.
[2] The issue before me is whether it is in the public interest to accept any late-filed allegations of discrimination under s. 22(3) of the Code. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, it is in the public interest to allow the Complaint to proceed late filed: s. 22(3).
II Order limiting publication
[4] In rendering this decision, it is necessary to discuss the Worker’s mental disability in some detail as it relates to her ability to file the complaint in a timely manner. As such, I have decided to order a limitation on the publication of the names of the parties to protect the Worker’s privacy regarding this sensitive information.
[5] 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 parties’ names, when the decision must identify the Worker’s mental disabilities could negatively affect her employment prospects and possibly stigmatize her within the community where she resides. These are compelling grounds for limiting publication for the purposes of preliminary decisions on this complaint.
III Background
[6] At the time her complaint was filed, the worker was 29 years old and single. She describes herself as feminine in appearance and attractive.
[7] The Worker has ADHD with a generalized anxiety disorder diagnosed in 2012. She also reports having chronic myofascial pain.
[8] Many of the dates, particularly the year, provided by the Worker on her complaint form appear to be incorrect. She does admit, however, that her entire complaint was late filed and I have attempted to assign years to dates that correspond to the 10 weeks she reports that she worked for the Employer.
[9] In late November 2021, the Worker alleges she was hired by the Employer, as a personal care aide, based on her youth, good looks and perceived vulnerabilities related to her disabilities.
[10] As of December 1, 2021, the Worker alleges the Employer engaged her in inappropriate conversations of a sexual nature. This included him telling her about the challenges he faced finding love, his frustration with not being able to satisfy his sexual urges without the assistance of others, explicitly discussing masturbation with her on more than one occasion, discussing the topics of escorts, brothels, pornography, sex workers and the “Me Too” movement with her, asking her to assist him in creating an online dating profile, boasting about his sexual activity, and complaining about being single, lonely, and his desire for intimacy. At the same time, the Worker reported the Employer made derogatory comments about other women generally.
[11] By December 1, 2021, the Worker also alleges that the Employer made unwanted comments of a sexual nature to her, that included references to them engaging in acts of intimacy. He also allegedly told her that he would take care of her and that she could sleep on his couch outside of scheduled hours. The Worker alleges the Employer asked her to give him a hug.
[12] On December 27, 2021, the Worker alleges the Employer disparaged former employees and told her about prior relationships with former female employees. This same day, the Worker alleges the Employer knowingly exposed her to the Covid-19 virus he was carrying, resulting in her being off work sick with no pay for two weeks.
[13] On January 15, 2022, the Worker alleges the Employer disclosed that he was sexually abused as a child while repeatedly emphasizing the need for trust between the two of them. The Worker alleges she experienced the Employer’s unsolicited disclosure as coercive and felt harmed by it.
[14] On January 22, 2022, the Worker alleges the Employer solicited her for sex while she was bathing him. The Worker alleges she immediately felt unsafe, extremely vulnerable, isolated and unsure how to proceed. After regaining her composure, the Worker alleges that she confronted the Employer to confirm he was seeking sex and he responded affirmatively. The Worker then alleges that she told him there were online services for that sort of thing and declined his request.
[15] The Worker alleges resigning after the bathing incident to protect herself from further harm.
[16] On January 30, 2022, the Worker alleges the Employer put a stop payment on her final paycheck which prevented her from cashing it. She alleges the Employer also subjected other female employees he terminated to this negative treatment. The Worker alleges the Employer corrected the stop payment after she called him and threatened to call the police. She alleges this incident caused her extreme stress and panic attacks.
IV ANALYSIS AND DECISION
[17] 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.
[18] 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 and to allow respondents the comfort of performing their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[19] The issue in this decision is whether it is in the public interest to allow the Worker’s late-filed allegations to proceed: s. 22(3).
A. Time Limit
[20] The complaint was filed on March 3, 2023. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination would have to have occurred on or after March 3, 2022.
[21] The Worker’s sexual harassment and assault allegations appear to have occurred between November 2021 and January 30, 2022. As such, her 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).
B. Public Interest
[22] 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.
[23] I have first considered the length of delay in filing. The allegations in this case occurred over a period of weeks ending on January 30, 2022. As such, the complaint allegations are just over one month late, which is relatively brief and not substantial. While a one-month delay might suggest that it is in the public interest to accept the complaint, other factors must be weighed before reaching such a conclusion: Demers v. Everything Wine and another, 2017 BCHRT 77 at para. 20.
[24] The Worker provided multiple reasons late filing her complaint. In terms of her mental health and the effects of the sexual harassment and assault, she states at the time her complaint was filed she developed life-threatening concerns which have prevented her from writing out the complaint. She further states that the anxiety caused by filing the complaint had recently resulted in her losing consciousness while driving and then suffering a concussion for which she was taken to hospital by ambulance. The Worker describes this traumatic brain injury as having ongoing negative effects on her ability to read and write.
[25] 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 at para. 21.
[26] In the circumstances of this case, I am satisfied that the Worker has provided multiple reasons for the delay in filing her complaint related to mental disability associated with recounting the harms she alleges took place while working for the Employer, as well as other mental and physical disabilities associated with a motor vehicle accident. In my view, the Worker’s medical evidence of disability from filing a complaint attracts the public interest in allowing her late filed complaint to proceed.
[27] The Worker also provided multiple life stressor reasons throughout the timeframe for filing that contributed to her delay. These stressors included dealing with family emergencies, experiencing a crisis in housing, being in financial distress, not having job security, not having any support and being socially isolated. In my view, these factors, when combined with the Worker’s mental and physical disabilities from filing, also attract the public interest.
[28] The Employer submits he agrees with the Worker’s reasons for delay if they occurred during the one-year timeframe for filing. The Worker confirmed her numerous reasons for delay occurred during the one-year limitation period.
[29] 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.
[30] The Worker is concerned about the likelihood of the Employer’s conduct occurring with other female personal care aides. While the Employer submits that he has changed and provided character references from his other employees and friends, the Worker says she is not convinced he has put any barriers in place to prevent future harms from occurring. While appreciating the Worker’s genuine concerns about the potential for the Employer to harm others, I am unable to conclude her complaint is unique for the purposes of attracting the public interest in allowing it to proceed. Unfortunately, the Tribunal routinely deals with cases involving sexual harassment and assault in employment, and the jurisprudence is fairly settled: for example, see Karageorgos v. Giardino Restaurant Ltd. , 2024 BCHRT 190.
[31] Given the brief delay in this case and the Worker’s compelling evidence related to her disability from filing, I find the Complaint attracts the public interest in allowing it to proceed late filed. Having found it is in the public interest to accept the late-filed complaint, I proceed to the issue of whether substantial prejudice would result.
C. Substantial Prejudice
[32] The Worker argues no party will experience substantial prejudice from her brief delay as witnesses remain available. The Employer agrees.
[33] In my view, no substantial prejudice would result to the Employer in this case as the delay was brief and the Employer has not raised any prejudice. While appreciating that some time has passed since the events in question occurred, I am satisfied witnesses can be identified and called up to provide testimony without substantially prejudicing the Employer.
[34] As such, I have determined the Worker has satisfied the burden of establishing both elements under s. 22(3) of the Code and I cannot conclude that the Employer would suffer substantial prejudice.
IV Conclusion
[35] For these reasons, the complaint will proceed.
Steven Adamson
Tribunal Member