Warford v. Board of Education of School District No. 41 (Burnaby), 2024 BCHRT 322
Date Issued: November 14, 2024
File: CS-005989
Indexed as: Warford v. Board of Education of School District No. 41 (Burnaby), 2024 BCHRT 322
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:
Tara Warford
COMPLAINANT
AND:
Board of Education of School District No. 41 (Burnaby)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT
Rule 24
Tribunal Member: Andrew Robb
Counsel for the Complainant: Meredith Shaw
Counsel for the Respondent: Alexandra Wickett and Jordan Bank
I INTRODUCTION
[1] On January 23, 2022, Tara Warford filed a human rights complaint against the Board of Education of School District No. 41 (Burnaby) [the School District], alleging discrimination in her employment, based on physical disability. The School District filed a response to the complaint on September 14, 2023.
[2] On July 11, 2024, Ms. Warford applied to amend her complaint. She says the information in her amendment should be considered as particulars of the allegations set out in her complaint, not new allegations. She says her complaint and the amendment allege a continuing contravention of the Human Rights Code, which started in 2016 and was ongoing when she filed her complaint. In the alternative, she says the Tribunal should use its discretion to accept any late-filed allegations in her amendment, under s. 22(3) of the Code.
[3] The School District opposes Ms. Warford’s application to amend the complaint. It says the amendment includes out-of-time allegations that were not in the original complaint, and the Tribunal should not use its discretion to accept them.
[4] For the reasons set out below, I find the proposed amendment can be accepted for filing because the incidents described in it form part of a continuing contravention together with timely allegations in the original complaint. I would, in any event, have accepted the allegations as late filed for essentially the same reasons.
II BACKGROUND
[5] Ms. Warford is Deaf. She works as an educational assistant [EA] at the BC Provincial School for the Deaf [BCSD], which is operated by the School District. She wants to work at a different school, with students who are not Deaf or hard of hearing, but the School District denied her applications to transfer to other schools.
A. The original complaint and the response
[6] The original complaint was brief. In response to a question on the complaint form asking her to “Describe the harm you experienced in a few words”, Ms. Warford said School District staff refused to hire deaf people to work in a hearing school, and they said deaf people should work at the deaf school. In response to a question on the complaint form about how the harm relates to Ms. Warford’s disability, she said the School District provided interpreters so that teaching staff who are not deaf can work in classes with deaf students, but refused to provide interpreters so that deaf teaching staff could work in classes with hearing students. She said School District staff used discriminatory words and said she was not qualified to teach outside the BCSD.
[7] In response to the question, “Describe what the Respondent did that harmed you”, Ms. Warford’s complaint indicated a date, June 23, 2021, and said “It started in Feb 2016 and it’s ongoing. We had 3 meetings to resolve this and nothing has been done. They mention that they will get back to me but they never did.” In a different part of the complaint form, in response to the question, “Did all of the conduct happen in the last year for all Respondents?”, Ms. Warford checked the box that said “yes”.
[8] In its response filed September 14, 2023, the School District denied discriminating against Ms. Warford, and said it accommodated her to the point of undue hardship. The response said the School District admits she applied to transfer from the BCSD to a mainstream school in 2018, 2019, and 2021, but in each case the School District determined she did not meet all the duties and responsibilities of those positions. It said she did meet the duties and responsibilities of an EA at the BCSD, and her skills were particularly helpful to students there.
[9] The response also said the allegations in the complaint from before January 24, 2021, were late-filed, and these allegations did not constitute a continuing contravention within the meaning of the Code .
B. The proposed amendment
[10] In her proposed amendment, Ms. Warford says she applied unsuccessfully for EA positions in schools outside the BCSD on specific dates in 2016 (twice), 2017, 2018 (twice), and in June 2021. The proposed amendment also lists specific dates when she reached out to the School District about working at schools outside the BCSD, and she was told there were no positions for which she was qualified, in every year from 2018 to 2023. It says some of these discussions, in 2022 and 2023, were about her interest in working as an EA during summer school sessions, which are not offered at the BCSD. It says Ms. Warford’s three meetings with School District staff, referred to in the original complaint, happened on September 20, 2018, June 6, 2019, and June 23, 2021, respectively.
[11] The proposed amendment also says the School District created a poisoned work environment for Ms. Warford, by repeatedly saying she is not capable of working effectively in classrooms outside the BCSD.
III DECISION
[12] Rule 24(4)(a) of the Tribunal’s Rules of Practice and Procedure says a complainant must apply to amend a complaint if the amendment adds an allegation that occurred outside of the time limit for filing the complaint under s. 22 of the Code.
[13] Ms. Warford says Rule 24(4) does not apply to her proposed amendment because the incidents described in it are particulars of the allegations in her original complaint, not new allegations. In the alternative, she says the 2016 to 2020 incidents in the proposed amendment should be accepted as part of a continuing contravention of the Code that continued until less than one year before the complaint was filed. In the further alternative, she says these incidents should be accepted as part of the complaint because it is in the public interest to do so, and the delay would not cause substantial prejudice to any person.
[14] In response to her application to file the proposed amendment, the School District does not appear to take issue with the incidents described in the proposed amendment that post-date the original complaint. Its submissions focus on Ms. Warford’s 2016 to 2020 allegations. The School District says the events described in the proposed amendment which pre-date January 24, 2021, should be seen as new allegations, not particulars of the original complaint. The School District says the original complaint did not allege a continuing contravention of the Code , and denies that the new allegations form part of a continuing contravention. The School District also says it is not in the public interest to accept the new allegations, and doing so would cause substantial prejudice to the School District.
[15] The Tribunal has taken different approaches to applications to amend a complaint, where the amendment refers to events from more than one year before the complaint was filed. In Gibbs v. Oak Bay Police Board and others (No. 2) , 2011 BCHRT 194, the Tribunal held that the temporal scope of a complaint is defined in the original complaint, for the purpose of an application to amend. The Tribunal said that if a complainant wants to file an amendment that would add allegations that go further back in time than the original complaint, whether the added allegations form a continuing contravention is not determinative; the complainant bears the onus of proving it is in the public interest to accept the added allegations, and that no substantial prejudice would result: Gibbs at paras. 41-42. In other words, if the amendment includes allegations outside the temporal scope of the original complaint, the Tribunal can only accept those allegations under s. 22(3) of the Code, not s. 22(2). The Tribunal followed the Gibbs approach in Greenlees v. British Columbia Emergency Health Services , 2024 BCHRT 122.
[16] Other recent cases have taken a different approach. In KS v. BC Ministry of Children and Family Development, 2023 BCHRT 174, the Tribunal said that, if an amendment includes allegations from before the one-year time limit for filing a complaint, the Tribunal will deal with the application to amend in the same way it would deal with a timeliness decision, by applying the tests set out in ss. 22(2) and (3) of the Code : para. 28. In KS, the continuing contravention included new allegations in the amendment that pre-dated the events described in the original complaint by several years: paras. 71 and 87. The Tribunal accepted the application to amend under s. 22(2), finding that the allegations in the original complaint and the amendment, considered together, formed a continuing contravention. The Tribunal followed the same approach as KS in Shen v. ToursByLocals Canada Inc. and another , 2024 BCHRT 31 at paras. 24-26 and 33-35.
[17] Although the parties to this complaint did not make submissions about the appropriate approach under Rule 24(4)(a), they addressed all the issues that must be decided under either of the approaches described above. It is unnecessary for me to decide which approach to follow. Following the approach in KS and Shen , I find the allegations in the amendment form a timely continuing contravention together with the allegations in the original complaint. Following the approach in Gibbsand Greenlees, assuming the School District is correct that the allegations in the amendment do not fall within the scope of the original complaint, I would exercise my discretion under s. 22(3) to accept the late-filed allegations in the amendment.
A. Temporal scope of the original complaint
[18] While my decision does not turn on the temporal scope of the original complaint, I address it here because it provides relevant context.
[19] The original complaint was ambiguous about its temporal scope. It said the discrimination was ongoing since 2016, but it also said all the discrimination happened in the year before the complaint was filed. Ms. Warford says the temporal scope of the original complaint goes back to 2016, while the School District says the scope is limited to events that occurred in the year before it was filed, because Ms. Warford said “yes” to the question in the complaint form about whether all the conduct happened in the last year. The School District’s submissions do not address the part of the complaint that says “It started in Feb 2016 and it’s ongoing.”
[20] Without determining the temporal scope of the original complaint, its central allegation is clear: Ms. Warford says the School District discriminated against her by refusing her applications to work at schools other than the BCSD because she is deaf. Her complaint form says this started in February 2016, and was ongoing, putting the School District on notice that, at a minimum, Ms. Warford would rely on this history.
[21] The School District’s response to the complaint defends its decisions to deny Ms. Warford’s requests to work outside the BCSD in 2018 and 2019. While this does not amount to an admission that the scope of the complaint included these applications, it does show that the original complaint included sufficient information to allow the School District to respond to Ms. Warford’s allegation of ongoing discrimination going back several years before the complaint was filed.
B. Continuing contravention
[22] On the approach I am taking to this application, it is unnecessary to decide if the proposed amendment contains new allegations or particulars of the allegations in the original complaint. Even if Ms. Warford’s proposed amendment adds new allegations, I find the allegations in the complaint and the added allegations, considered together, are part of a timely continuing contravention.
[23] A continuing contravention is a succession or repetition of separate acts of discrimination of the same character: School District v. Child, 2018 BCCA 136 at para. 48. To allege a timely continuing contravention, a complaint must allege an occurrence or example of discrimination that falls within the time limit: School Districtat para. 44.
[24] 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: Dickson at paras. 16-17. 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 .
[25] There is no dispute that the original complaint alleges at least one timely example of discrimination. I understand it to allege that the School District denied Ms. Warford’s application to work outside the BCSD in June 2021, less than one year before the complaint was filed. The School District’s response admits this happened in 2021. But the School District says Ms. Warford’s allegations about incidents in 2016 to 2020 are not of the same character as this timely allegation.
[26] I find Ms. Warford’s allegations of discrimination that occurred more than one year before the complaint was filed are similar in character to her timely allegation. All the discrimination alleged in the original complaint and the proposed amendment involved Ms. Warford applying for or expressing interest in positions outside the BCSD, and the School District telling her she was not qualified for those positions due to her disability.
[27] The School District says Ms. Warford’s allegation, in the proposed amendment, that it created a poisoned work environment differs from her timely allegation in the original complaint because it is about comments that School District staff made to her, rather than denials of her applications to work outside the BCSD. In my view the facts underlying the poisoned workplace allegation are of the same character as those underlying Ms. Warford’s allegation that the School District denied her applications to work outside the BCSD on an ongoing basis since 2016. The poisoned workplace allegation is based on being told she was not qualified to work outside the BCSD, or to communicate with students outside the BCSD. This is similar to the part of the original complaint that said School District staff used discriminatory words, and they said deaf people work at the deaf school.
[28] The School District says each of Ms. Warford’s applications to work outside the BCSD was assessed independently of the others, so each incident of alleged discrimination involved distinct decisions and unique considerations. But its response to the complaint suggests that her disability was a consideration in each denial of her applications.
[29] The School District says Ms. Warford’s allegation that she was not hired to work in summer school sessions outside the BCSD was not raised in the original complaint. In reply, Ms. Warford says the original complaint was about the School District’s refusal to consider her for positions in hearing schools, and was not limited to its refusal to hire her for full-term sessions.
[30] I agree with Ms. Warford’s submission. Her allegation about the School District refusing to hire her for summer positions outside the BCSD is similar to her general allegation that the School District denied her applications for transfers because she is deaf.
[31] The School District does not suggest there are significant or unexplained gaps in time between the incidents that Ms. Warford says were discrimination. In the absence of any submissions from the School District about this issue, I accept Ms. Warford’s submission that the gaps between the dates when her requests to work outside the BCSD were denied are explained by the school calendar and the School District’s hiring schedule.
[32] For these reasons I find the allegations in the original complaint and the amendment, considered together, form a continuing contravention of the Code which began in February 2016, and continued up to and beyond the date she filed the complaint.
C. Discretion to accept late-filed allegations
[33] Under s. 22(3) of the Code, I am satisfied that it is in the public interest to accept the late-filed allegations in the amendment, and that no substantial prejudice will result to any person because of the delay.
[34] 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 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. The inquiry is always fact and context specific.
[35] Ms. Warford says she did not file a complaint sooner because she hoped she could resolve her concerns with the School District directly. The fact that a complainant attempted to resolve their issues outside the Tribunal’s process does not, on its own, relieve them from the consequences of missing a filing deadline: Eldor v. UBC, 2009 BCHRT 204 at para. 67. Depending on the circumstances, however, the Tribunal may accept a complainant’s efforts to resolve concerns before filing a complaint as a reasonable explanation for delay: Hoangat para. 30.
[36] There is no dispute that Ms. Warford made the School District aware of her concerns, in the years before she filed her complaint. I accept her submission that the pattern of the School District’s alleged discrimination only became apparent over time, as her applications for jobs outside the BCSD were denied, year after year. I find this reason for her delay in filing the allegations in her proposed amendment weighs in favour of the public interest in accepting the amendment.
[37] The earliest incidents described in the proposed amendment occurred over five years before Ms. Warford filed the complaint. This delay is significant. In the context of a new complaint, it may weigh strongly against accepting the late-filed complaint. However, I find this concern is attenuated where Ms. Warford, as a self-represented party when she filed the original complaint, referenced the ongoing nature of the alleged discrimination going back to 2016. Her proposed amendment sets out specific incidents and seeks to bring those incidents within the scope of the complaint to be determined. Ms. Warford’s original complaint identified the history as relevant to the timely allegations in any event. In these circumstances, it is in the public interest to permit the amendment, to capture the full temporal scope of the allegations.
[38] I now consider whether any person will suffer substantial prejudice because of the delay in filing the complaint.
[39] While the complainant bears the burden under s. 22(3) of the Code, the respondent is more likely to have information about substantial prejudice: Ferguson v. Ausenco Engineering Canada and another, 2015 BCHRT 28 at para. 87; Shields v. Source Interlink Canada , 2007 BCHRT 164 , para. 14 . It is not enough to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another, 2009 BCHRT 406 , para. 80 .
[40] The School District says the Tribunal should infer prejudice based on the passage of time, since witnesses may be unavailable or their memories may have dimmed, or documents could be lost. But the School District does not explain how those considerations apply in this case, where it appears the School District was aware of Ms. Warford’s concerns for years before she filed a complaint. It does not deny her claim that her application for positions outside the BCSD are well documented. Nor does the School District suggest that any particular witnesses are unavailable, or any relevant documents have been lost.
[41] On the materials before me, I find no substantial prejudice will result to the School District from accepting the 2016 to 2020 incidents described in Ms. Warford’s proposed amendment as allegations of discrimination. As set out above, the School District addressed at least some of the earlier allegations in its response to complaint. It has not identified how it would be substantially prejudiced in defending against the allegations.
IV CONCLUSION
[42] Ms. Warford’s amendment filed July 11, 2024, is accepted for filing. The Tribunal will consider the complaint, as amended, as alleging a continuing contravention of the Code.
[43] Under Rule 24(5), the School District may respond to the amended complaint by filing a Form 3-Amendment, within 21 days from the date of this decision. If the School District does not do so, its response filed September 14, 2023, will be deemed to be its response to the amended complaint.
Andrew Robb
Tribunal Member