Njoroge v. City of North Vancouver and another, 2024 BCHRT 321
Date Issued: November 14, 2024
File: CS-000687
Indexed as: Njoroge v. City of North Vancouver and another, 2024 BCHRT 321
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:
Collins Njoroge
COMPLAINANT
AND:
The City of North Vancouver and Rick Wait
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Theressa Etmanski
On their own behalf: Collins Njoroge
Counsel for the City of North Vancouver: Taryn Mackie and Jennifer Lang-Hodge
I INTRODUCTION
[1] Collins Njoroge was offered a position with the City of North Vancouver [City] as Bylaw Enforcement Officer. The employment offer was conditional on Mr. Njoroge obtaining security clearance, and the City withdrew the employment offer after the RCMP did not grant it. Mr. Njoroge alleges that the RCMP and investigator Rick Wait discriminated against him in the course of administering the security clearance process, and the City relied on that discriminatory process to revoke his offer of employment. Mr. Njoroge has filed a complaint alleging discrimination in employment based on his ancestry, place of origin, colour, race, and sexual orientation.
[2] The City denies discriminating and applies to dismiss the complaint pursuant to ss. 27(1)(a) and 27(1)(g) of the Human Rights Code . They say the conduct complained of in the complaint is that of the RCMP, and therefore falls outside of the jurisdiction of the Tribunal. The City further says that the complaint was filed outside of the Code’s one-year limitation period, and Mr. Njoroge has not established that it is in the public interest to accept the complaint, or no substantial prejudice will result because of the delay.
[3] Neither Mr. Njoroge nor Mr. Wait have responded to this application. I am satisfied that both parties were given noticed of the application by the Tribunal on April 11, 2024, and the City on May 16, 2024. Both were provided information on how and when to provide a response.
[4] I find this application can most efficiently be resolved under s. 27(1)(g) of the Code. The issue I must decide is whether there are compelling public interest reasons to accept the late-filed complaint. I find that there are not.
[5] For the following reasons, I grant the application. 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.
II BACKGROUND
[6] The following background is based on the information provided by the parties. I make no findings of fact.
[7] On February 6, 2017, the City offered Mr. Njoroge a conditional offer of employment.
[8] On or around February 24, 2017, Mr. Njoroge attended the RCMP Detachment in North Vancouver for a reliability interview as part of the RCMP’s security clearance process. The interview was conducted by Mr. Wait, the individual respondent to this complaint.
[9] On February 27, 2024, Mr. Njoroge says he started his first training shift with the City. He states that he was scheduled to work five days that week.
[10] On or around March 3, 2017, Mr. Njoroge says he was on-shift at the City office when he observed Mr. Wait enter his supervisor’s office. Mr. Njoroge says shortly after, his supervisor informed him that due to vehicle unavailability, he would be removed from the schedule until further notice. He says his supervisor informed him that once the vehicle issue was resolved, his shifts would be rescheduled.
[11] After not hearing from the City for nearly six months, Mr. Njoroge says he filed a request under the Freedom of Information and Protection of Privacy Act [FOI request] for the City’s hiring records regarding his candidacy, including Mr. Wait’s investigation report regarding his security clearance.
[12] On October 17, 2017, the City withdrew its employment offer to Mr. Njoroge on the basis that it had been advised by the RCMP that Mr. Njoroge would not be able to obtain a security clearance. The City says at no time did it receive or review Mr. Wait’s investigation report, nor were the contents of the investigation report ever disclosed to the City.
[13] On or around October 26, 2017, the City responded to Mr. Njoroge’s FOI request and indicated that the City does not have access to Mr. Wait’s investigation report. On November 3, 2017, the City confirmed that it received a short email regarding the status of Mr. Njoroge’s security clearance, but could not disclose it as it fell under federal jurisdiction. On April 27, 2018, following a ruling of the British Columbia Office of the Information Privacy Commissioner, the City provided Mr. Njoroge with a copy of the email from the RCMP advising that security clearance would not be issued for him.
[14] Mr. Njoroge subsequently filed a FOI request to the RCMP seeking a copy of Mr. Wait’s investigation report. He then filed a complaint with the Federal Privacy Commissioner after the RCMP did not provide him the information he was seeking. As a result, on June 5, 2018, he says he received a redacted copy of Mr. Wait’s investigation report. He states that the investigation report included “numerous negative references about [him] including [his] nationality and immigration status.” He says he is endeavouring to obtain an unredacted copy of the report, with the next step being litigation in Federal Court.
[15] Mr. Njoroge filed this complaint on May 24, 2019. On October 9, 2019, he filed an amendment to the complaint. The Tribunal initially declined to accept the complaint for filing, in part because Mr. Wait’s role as an “agent” for the RCMP was outside of the Tribunal’s jurisdiction. Mr. Njoroge subsequently applied for reconsideration of the Tribunal’s decision and included information from a RCMP Investigator that was submitted to the Canadian Human Rights Commission [CHRC] with respect to a complaint filed by Mr. Njoroge in that forum. The information stated that Mr. Wait was not under the employment of the RCMP at the relevant time of this complaint, and instead was “an ex-member of the RCMP who is hired and paid for by the City of North Vancouver to conduct background investigations.” The Tribunal granted the reconsideration request and accepted the complaint partly based on this information.
[16] On or around June 7, 2023, Mr. Wait filed his response to this complaint. In his response, he states that he was employed by the RCMP E Division HQs – Departmental Security Section as a Field Investigator between January 1, 2007, and December 31, 2021. He provided an email dated May 26, 2023, from a Human Resources Advisor at Public Service Staffing, Human Resources Branch, RCMP E Division HQ. It confirms that according to the Human Resources Management Information System for the Government of Canada, Mr. Wait was employed with the RCMP Departmental Security Section in 2017, specifically from January 3, 2017, to December 30, 2017.
[17] According to the City, the information submitted to the CHRC by the RCMP Investigator about Mr. Wait was incorrect. The City states that it has never employed nor engaged any individual or organization to conduct background investigations or interviews on behalf of the City, including Mr. Wait. Rather, the City says the security clearance process was solely managed by the RCMP, and the requirement for certain City employees to obtain and maintain security clearance was solely the result of RCMP policies and protocols. The City says that upon completion of the RCMP security clearance process, it receives a short notification via e-mail advising whether it has been issued. The City says it does not receive reasons or have the authority or ability to access any information or documentation compiled in the RCMP security clearance process.
III DECISION
[18] 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.
[19] The City argues that all the allegations in this complaint are late filed and should be dismissed under s. 27(1)(g) of the Code.I must decide two issues: (1) whether the complaint is late filed, and (2) if so, whether to exercise my discretion to accept it because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code,s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[20] I agree with the City that the complaint is late filed. The alleged acts discriminatory acts are as follows:
a. On February 24, 2017, Mr. Njoroge attended a reliability interview at the RCMP Detachment in North Vancouver. He alleges Mr. Wait asked him inappropriate questions about his sexual orientation and sexual preferences.
b. On or around March 3, 2017, the City removed Mr. Njoroge from further training shifts, stating that this was due to “vehicle unavailability”.
c. On October 13, 2017, the RCMP informed the City that Mr. Njoroge would not be issued a security clearance.
d. On October 17, 2017, the City withdrew its job offer to Mr. Njoroge because he was not able to obtain a security clearance.
e. On October 26, 2017, and November 3, 2017, the City engaged in “deceit” with respect to disclosing information in response to Mr. Njoroge’s FOI request.
[21] The last alleged act occurred on November 3, 2017. Mr. Njoroge filed his complaint on May 24, 2019, approximately 18 months later. The complaint was therefore filed at least six months out of time for all the allegations.
[22] Because the complaint is late-filed, I now consider whether to accept all or part of the complaint 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.
[23] 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 220at para. 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; Mziteat para. 55. The inquiry is always fact and context specific.
[24] The length of delay of at least six months in this case is significant: Asna-Ashari v. B.C. (Attorney General) and others, 2010 BCHRT 315 at para. 40; Benedict v. Rutland Dental Centre and others , 2008 BCHRT 39 at para. 19; Schulz v. Camosun College, 2023 BCHRT 142at para 23;Bradley v. Onni Group of Companies, 2018 BCHRT 250 at para. 11. However, this is not insurmountable if there are compelling public interest reasons to accept the late-filed complaint. Based on the information before me, I find that there are not.
[25] Although Mr. Njoroge has not responded to this application, he provided his position with respect to the public interest of accepting his complaint in the complaint form. I have considered this information for the purpose of this analysis.
[26] Mr. Njoroge says he did not learn about the discriminatory basis for the denial of his security clearance until he received a copy of Mr. Wait’s investigation report on June 5, 2018, through a FOI request. Until that time, he did not know that the City’s termination of his job offer was the result of alleged discrimination based on his protected characteristics. In such circumstances, I am satisfied that fairness requires that the calculation of the delay take this factor into consideration. This approach is consistent with A.M. v. British Columbia Human Rights Tribunal , 2017 BCSC 89 at paras. 44-54.
[27] In A.M., the Court dealt with a review of the Tribunal’s late filing decision where the complaint was filed after the complainant learned through testimony at a custody hearing that the respondent had concerns about his ability to parent because he was from Saudi Arabia. The Tribunal declined to accept the late-filed complaint stating that the evidence did not support a finding of public interest. The Court rejected this decision, and instead held that fairness dictated that the complaint be accepted for filing where the complainant only learned of an evidentiary basis for a complaint at the custody hearing. Before then, the court characterized him as being unaware that he had a case.
[28] Applying this same reasoning, I am satisfied that the delay related to the period between November 3, 2017, and June 5, 2018, can be reasonably explained. However, Mr. Njoroge has provided no explanation why he did not or could not have filed his complaint by November 3, 2018, nearly six months after he says he discovered the basis for his complaint. Absent any explanation from Mr. Njoroge, it appears he could have submitted his complaint within the statutory time limit even when this factor is taken into account. But he did not.
[29] The City notes that Mr. Njoroge waited almost a year after receiving Mr. Wait’s investigation report before filing his complaint with the Tribunal. It says this demonstrates a lack of diligence in pursuing his complaint. They say in order for it to be in the public interest to accept a late-filed complaint, a complainant has a duty to conduct himself in an expeditious manner once obtaining the information he says forms the basis for the complaint: Asna-Ashariat para.42 ; Bradleyat paras. 14-15. I agree.
[30] Mr. Njoroge appears to have operated under the mistaken understanding that the date upon which the time limit is measured is the date he learned of the alleged discrimination: June 5, 2018. He states that he filed when he did so as to “safeguard” against the Code’s time limit. However, as discussed above, the relevant date upon which to measure the time limit is the date of the alleged contravention, or if a continuing contravention is alleged, then the last instance of discrimination: Code, 22(1) and 22(2). While a delay in learning about alleged discriminatory acts may be relevant to determining if it is in the public interest to accept a late-filed complaint, as discussed in A.M., it does not stop the clock with respect to the legislative time limit.
[31] Mr. Njoroge also states that he was waiting to file his complaint because he was awaiting the outcome of pending litigation with the Federal Privacy Commissioner with respect to redacted portions of Mr. Wait’s investigation report. He says that he wished to make a fully informed complaint, and felt it was necessary to have the complete unredacted document to do so. However, I agree with the City that this is also not a basis upon which to extend the Code’s time limit. The Tribunal’s complaint process does not require individuals to submit supporting evidence when filing a complaint. While there may be strategic value in waiting to see the quality of supporting evidence before deciding whether to file a complaint, this reason does not carry any significant public interest value: Stock v. Starbucks Coffee Company, 2021 BCHRT 99 at para. 11.
[32] Mr. Njoroge also says it is in the public interest to accept his complaint so that institutions are held accountable for discriminatory conduct related to protected grounds. While the purposes of the Code support this position very generally, it would undermine the intent of the Code’s time limit for this to be a sufficient reason to accept late-filed complaints in all circumstances.
[33] Finally, Mr. Njoroge says that it is in the public interest to accept this complaint because it raises a novel issue: “the extent to which a municipal public body (City of North Vancouver) is responsible for the discriminatory conduct of third parties.”
[34] The City disagrees that this is a novel issue. The City points to Dickson v. Vancouver Police Department and others, 2006 BCHRT 290; however, I do not find this case particularly useful to my analysis. Dickson concerned a complaint against the City of Vancouver by an applicant for employment with the Vancouver Police Department. There were no distinct allegations against the City of Vancouver. The Tribunal relied on Reid et al. v. City of Vancouver Police Board , 2000 BCHRT 30, where the relevant provisions of the Police Act had been interpreted, to dismiss the complaint on the basis that there was no employment relationship between the complainant and the City of Vancouver. The facts of Dickson are distinguishable from the present complaint, where as a condition of the job offer, the complainant was required to undergo a security clearance check by Mr. Wait, who may have been acting on behalf of the RCMP.
[35] Nevertheless, I agree that the issue of liability for third party conduct, such as processing a security clearance application, is not a particularly unique or novel issue. In Malagoli v. City of North Vancouver and another , 2023 BCHRT 42 at para 237, the Tribunal considered the very issue of whether the City of North Vancouver could be liable for issues related to the RCMP’s security clearance process and found it did not. The issue of an employer or service provider bearing liability for relying on the discriminatory conduct of a third party was also considered in Providence Health Care v. Dunkley , 2016 BCSC 1383 and Belusic obo Canadian Federation of the Blind v. City of Victoria and another , 2020 BCHRT 115.
[36] In view of these considerations, I find it is not in the public interest to accept the late-filed complaint. It is therefore unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
IV CONCLUSION
[37] I grant the City’s application and dismiss the complaint in its entirety pursuant to s. 27(1)(g) of the Code.
Theressa Etmanski
Tribunal Member